**** as far as possible, I
tried to avoid mistakes and omissions and if any beyond my knowledge, I am not
responsible for the same . for further reference , please refer Original Act
THE TRANSFER OF PROPERTY ACT,
1882
ACT NO. 4 OF 1882 [ 17th February, 1882.]
An Act to amend the law relating to the Transfer of Property by act of Parties.
Preamble.
WHEREAS it is expedient to define and amend certain parts of the law relating
to the transfer of property by act of parties; It is hereby enacted as follows:--
CHAPTER I
PRELIMINARY
CHAPTER I
PRELIMINARY
1. Short
title. Commencement.- This Act may be called the Transfer of Property Act, 1882
. It shall come into force on the first day of July, 1882 . Extent. 1[ It
extends 2[ in the first instance to the whole of
1. Subs. by the A. O. 1950 for the original third paragraph.
2 The application of this Act was barred in the Naga Hills District, including
the Mokokchang Sub- Division, the Dibrugarh Frontier Tract, the North Cachar
Hills, the Garo Hills, the Khasia and Jaintia Hills and the Mikir Hills Tract,
by notification under s. 2 of the Assam Frontier Tracts Regulation, 1880 (2 of
1880 ). The Act has been declared to be in force in Panth Piploda by the Panth
Piploda Laws Regulation, 1929 (1 of 1929 ), s. 2, and continued in force, with
modifications, in the territory transferred to Delhi Province by the Delhi Laws
Act, 1915 (7 of 1915 ), s. 3 and Sch. III. It has also been partially extended
to
3. Subs. by the Adaptation of Laws (No. 2) Order, 1956,
for" Part B States".
were comprised in Part B States or in the States of],
2. Repeal
of Acts. Saving of certain enactments, incidents, rights, liabilities, etc.- In
the territories to which this Act extends for the time being the enactments
specified in the schedule hereto annexed shall be repealed to the extent
therein mentioned. But nothing herein contained shall be deemed to affect--
(a) the
provisions of any enactment not hereby expressly repealed:
(b) any
terms or incidents of any contract or constitution of property which are
consistent with the provisions of this Act, and are allowed by the law for the
time being in force:
(c) any
right or liability arising out of a legal relation constituted before this Act
comes into force, or any relief in respect of any such right or liability: or
(d) save
as provided by section 57 and Chapter IV of this Act, any transfer by operation
of law or by, or in execution of, a decree or order of a Court of competent
jurisdiction:
1. Subs. by the A. O. 1937 for the original para. 2 Subs. by
the Adaptation of Laws (No. 2) Order, 1956, for" said States". 3
Subs. by Act 3 of 1885, s. 1, for the original para. 4 The words" with the
previous sanction of the G. G. in C." omitted by Act 38 of 1920, s. 2 and
Sch. I. 5 Added by Act 3 of 1885, s. 2 (with retrospective effect). S. 54, paras.
2 and 3, and ss. 59, 107 and 123 extend to every cantonment- see s. 287 of the
Cantonments Act, 1924 (2 of 1924 ). 6 Subs. by Act 20 of 1929, s. 2, for"
1877 ".
and nothing in the second chapter of this Act shall be
deemed to affect any rule of 1[ Muhammadan 2[ law.
3.
Interpretation- clause.- In this Act, unless there is something repugnant in
the subject or context,--" immoveable property" does not include
standing timber, growing crops or grass:" instrument" means a non-
testamentary instrument: 3[ attested", in relation to an instrument, means
and shall be deemed always to have meant attested 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, and each of
whom has signed the instrument in the presence of the executant; but it shall
not be necessary that more than one of such witnesses shall have been present
at the same time, and no particular form of attestation shall be
necessary:]" registered" means registered in 4[ 5[ any part of the
territories] to which this Act extends] under the 6[ law for the time being in
force regulating the registration of documents:" attached to the
earth" means--
(a)
rooted in the earth, as in the case of trees and shrubs;
(b)
imbedded in the earth, as in the case of walls or buildings; or
(c)
attached to what is so imbedded for the permanent beneficial enjoyment of that
to which it is attached:
1. The word" Hindu" omitted by Act 20 of 1929, s.
3. 2 The words" or Buddhist" omitted by s. 3, ibid. 3 Ins. by Act 27
of 1926, s. 2, as amended by Act 10 of 1927, s. 2 and Sch. I. 4 Subs. by Act 3
of 1951, s. 3 and Sch., for" a Part A State or a Part C State" (w. e.
f. 1- 4- 1951 ). 5 Subs. by the Adaptation of Laws (No. 2) Order, 1956,
for" any State". 6 See the Indian Registration Act, 1908 (16 of 1908
).
1[ 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 recognize as affording grounds for relief, whether such debt
or beneficial interest be existent, accruing, conditional or contingent:] 2[ a
person is said to have notice" of a fact when he actually knows that fact,
or when, but for wilful abstention from an inquiry or search which he ought to
have made, or gross negligence, he would have known it. Explanation I.-- Where
any transaction relating to immoveable property is required by law to be and
has been effected by a registered instrument, any person acquiring such
property or any part of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration or, where
the property is not all situated in one sub- district, or where the registered
instrument has been registered under sub- section (2) of section 30 of the
Indian Registration Act, 1908 (16 of 1908 ), from the earliest date on which
any memorandum of such registered instrument has been filed by any Sub-
Registrar within whose sub- district any part of the property which is being
acquired, or of the property wherein a share or interest is being acquired, is
situated: Provided that--
(1) the
instrument has been registered and its registration completed in the manner
prescribed by the Indian Registration Act, 1908 (16 of 1908 ), and the rules
made thereunder,
(2) the
instrument or memorandum has been duly entered or filed, as the case may be, in
books kept under section 51 of that Act, and
(3) the
particulars regarding the transaction to which the instrument relates have been
correctly
1. Ins. by Act 2 of 1900, s. 2. 2 Subs. by Act 20 of 1929,
s. 4, as amended by Act 5 of 1930, s. 2, for the original paragraph.
entered in the indexes kept under section 55 of that Act.
Explanation II.-- Any person acquiring any immoveable property or any share or
interest in any such property shall be deemed to have notice of the title, if
any, of any person who is for the time being in actual possession thereof.
Explanation III.-- A person shall be deemed to have had notice of any fact if
his agent acquires notice thereof whilst acting on his behalf in the course of
business to which that fact is material: Provided that, if the agent
fraudulently conceals the fact, the principal shall not be charged with notice
thereof as against any person who was a party to or otherwise cognizant of the
fraud.]
4.
Enactments relating to contracts to be taken as part of Contract Act and
supplemental to the Registration Act.- The chapters and sections of this Act
which relate to contracts shall be taken as part of the Indian Contract Act,
1872 (9 of 1872 ). 1[ And sections 54, paragraphs 2 and 3, 59, 107 and 123
shall be read as supplemental to the Indian Registration Act, 2[ 1908 ] (16 of
1908 ).] CHAPTER II OF TRANSFERS OF PROPERTY BY ACT OF PARTIES CHAPTER II 3[ OF
TRANSFERS OF PROPERTY BY ACT OF PARTIES
(A)
Transfer of Property, whether moveable or immoveable
5. "
Transfer of property" defined. In the following sections" transfer of
property" means an act by which a living person conveys property, in
present or in future, to one or more other living persons, or to himself, 4[ or
to himself] and one or more other living persons; and" to transfer property"
is to perform such act. 4[ In this section" living person" includes a
company or association or body of individuals, whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force
relating to
1. Added by Act 3 of 1885, s. 3. 2 Subs. by Act 20 of 1929,
s. 5, for" 1877 ". 3 Nothing in Chapter II is to be deemed to affect
any rule of Muhammadan Law-- see section 2, supra. 4 Ins. by Act 20 of 1929, s.
6.
transfer of property to or by companies, associations or
bodies of individuals.]
6. What
may be transferred.- Property of any kind may be transferred, except as
otherwise provided by this Act or by any other law for the time being in force.
(a) The
chance of an heir- apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, or any other mere possibility of
a like nature, cannot be transferred.
(b) A mere
right of re- entry for breach of a condition subsequent cannot be transferred
to any one except the owner of the property affected thereby.
(c) An
easement cannot be transferred apart from the dominant heritage.
(d) An
interest in property restricted in its enjoyment to the owner personally cannot
be transferred by him.
(dd) 1[ A
right to future maintenance, in whatsoever manner arising, secured or
determined, cannot be transferred.]
(e) A
mere right to sue 2[ cannot be transferred.
(f) A
public office cannot be transferred, nor can the salary of a public officer,
whether before or after it has become payable.
(g)
Stipends allowed to military 3[ , naval], 4[ air- force] and civil pensioners
of 5[ Government] and political pensions cannot be transferred.
(h) No
transfer can be made (1) in so far as it is opposed to the nature of the
interest affected thereby, or (2) 6[ for an unlawful object or consideration
within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872
),] or (3) to a person legally disqualified to be transferee.
(i) 7[
Nothing in this section shall be deemed to authorize a tenant having an
untransferable right of occupancy, the farmer of an estate in respect of which
default has been made in paying revenue, or the
1. Ins. by Act 20 of 1929, s. 6. 2 The words" for
compensation for a fraud or for harm illegally caused", omitted by Act 2
of 1900, s. 3. 3 Ins. by Act 35 of 1934, s. 2 and Sch. 4 Ins. by Act 10 of
1927, s. 2 and Sch. I. 5 The word" Government" successively subs. by
the A. O. 1937 and the A. O. 1950 to read as above. 6 Subs. by Act 2 of 1900,
s. 3, for" for an illegal purpose". 7 Added by Act 3 of 1885, s. 4.
lessee of an estate under the management of a Court of
Wards, to assign his interest as such tenant, farmer or lessee.]
7.
Persons competent to transfer.- Every person competent to contract and entitled
to transferable property, or authorized to dispose of transferable property not
his own, is competent to transfer such property either wholly or in part, and
either absolutely or conditionally, in the circumstances, to the extent and in
the manner, allowed and prescribed by any law for the time being in force.
8.
Operation of transfer.- Unless a different intention is expressed or
necessarily implied, a transfer of property passes forthwith to the transferee
all the interest which the transferor is then capable of passing in the
property, and in the legal incidents thereof. Such incidents include, where the
property is land, the easements annexed thereto, the rents and profits thereof
accruing after the transfer, and all things attached to the earth; and, where
the property is machinery attached to the earth, the moveable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent
thereof accruing after the transfer, and the locks, keys, bars, doors, windows,
and all other things provided for permanent use therewith; and, where the
property is a debt or other actionable claim, the securities therefor (except
where they are also for other debts or claims not transferred to the
transferee), but not arrears of interest accrued before the transfer; and,
where the property is money or other property yielding income, the interest or
income thereof accruing after the transfer takes effect.
9. Oral
transfer.- A transfer of property may be made without writing in every case in
which a writing is not expressly required by law.
10.
Condition restraining alienation.- Where property is transferred subject to a
condition or limitation absolutely restraining the transferee or any person
claiming under him from parting with or disposing of his interest in the
property, the condition or limitation is void, except in the case of a lease
where the condition is for the benefit of the lessor or those claiming under
him: provided that property may be transferred to or for the benefit of a woman
(not being a Hindu, Muhammadan or Buddhist),
so that she shall not have power during her marriage to
transfer or charge the same or her beneficial interest therein.
11.
Restriction repugnant to interest created.- Where, on a transfer of property,
an interest therein is created absolutely in favour of any person, but the
terms of the transfer direct that such interest shall be applied or enjoyed by
him in a particular manner, he shall be entitled to receive and dispose of such
interest as if there were no such direction. 1[ Where any such direction has
been made in respect of one piece of immoveable property for the purpose of
securing the beneficial enjoyment of another piece of such property, nothing in
this section shall be deemed to affect any right which the transferor may have
to enforce such direction or any remedy which he may have in respect of a
breach thereof.]
12.
Condition making interest determinable on insolvency or attempted alienation.-
Where property is transferred subject to a condition or limitation making any
interest therein, reserved or given to or for the benefit of any person, to
cease on his becoming insolvent or endeavouring to transfer or dispose of the
same, such condition or limitation is void. Nothing in this section applies to
a condition in a lease for the benefit of the lessor or those claiming under
him.
13.
Transfer for benefit of unborn person.- Where, on a transfer of property, an
interest therein is created for the benefit of a person not in existence at the
date of the transfer, subject to a prior interest created by the same transfer,
the interest created for the benefit of such person shall not take effect,
unless it extends to the whole of the remaining interest of the transferor in
the property. Illustration A transfers property of which he is the owner to B
in trust for A and his intended wife successively for their lives, and, after
the death of the survivor, for the eldest son of the intended marriage for
life, and after his death for A' s second son. The interest so created for the
benefit of the eldest son does not take effect, because it does not extend to
the whole of A' s remaining interest in the property.
14. Rule
against perpetuity.- No transfer of property can operate to create an interest
which is to take effect after the life- time of one or more persons living at
the date of such transfer, and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he attains full
age, the interest created is to belong.
1. Subs. by Act 20 of 1929, s. 8, for the original paragraph.
15.
Transfer to class some of whom come under sections 13 and 14.- If, on a
transfer of property, an interest therein is created for the benefit of a class
of persons with regard to some of whom such interest fails by reason of any of
the rules contained in sections 13 and 14, such interest fails 1[ in regard to
those persons only and not in regard to the whole class].
16. 2[
Transfer to take effect on failure of prior interest.- Where, by reason of any
of the rules contained in sections 13 and 14, an interest created for the
benefit of a person or of a class of persons fails in regard to such person or
the whole of such class, any interest created in the same transaction and
intended to take effect after or upon failure of such prior interest also
fails.
17.
Direction for accumulation.-
(1) Where the
terms of a transfer of property direct that the income arising from the
property shall be accumulated either wholly or in part during a period longer
than--
(a) the
life of the transferor, or
(b) a
period of eighteen years from the date of the transfer, such direction shall,
save as hereinafter provided, be void to the extent to which the period during
which the accumulation is directed exceeds the longer of the aforesaid periods,
and at the end of such last- mentioned period the property and the income
thereof shall be disposed of as if the period during which the accumulation has
been directed to be made had elapsed.
(2) This
section shall not affect any direction for accumulation for the purpose of--
(i) the
payment of the debts of the transferor or any other person taking any interest
under the transfer, or
(ii) the
provision of portions for children or remoter issue of the transferor or of any
other person taking any interest under the transfer, or
(iii) the
preservation or maintenance of the property transferred; and such direction may
be made accordingly.
18.
Transfer in perpetuity for benefit of public.- The restrictions in sections 14,
16 and 17 shall not apply in the case of a transfer of property for the benefit
of the public in the advancement of religion, knowledge, commerce, health,
safety, or any other object beneficial to mankind.]
1. Subs. by Act 20 of 1929, s. 9, for" as regards the
whole class". 2 Subs. by s. 10, ibid., for the original sections 16 to 18.
19.
Vested interest.- Where, on a transfer of property, an interest therein is
created in favour of a person without specifying the time when it is to take
effect, or in terms specifying that it is to take effect forthwith or on the
happening of an event which must happen, such interest is vested, unless a
contrary intention appears from the terms of the transfer. A vested interest is
not defeated by the death of the transferee before he obtains possession.
Explanation.-- An intention that an interest shall not be vested is not to be
inferred merely from a provision whereby the enjoyment thereof is postponed, or
whereby a prior interest in the same property is given or reserved to some
other person, or whereby income arising from the property is directed to be
accumulated until the time of enjoyment arrives, or from a provision that if a
particular event shall happen the interest shall pass to another person.
20. When
unborn person acquires vested interest on transfer for his benefit.- Where, on
a transfer of property, an interest therein is created for the benefit of a person
not then living, he acquires upon his birth, unless a contrary intention appear
from the terms of the transfer, a vested interest, although he may not be
entitled to the enjoyment thereof immediately on his birth.
21.
Contingent interest.- Where, on a transfer of property, an interest therein is
created in favour of a person to take effect only on the happening of a
specified uncertain event, or if a specified uncertain event shall not happen,
such person thereby acquires a contingent interest in the property. Such
interest becomes a vested interest, in the former case, on the happening of the
event, in the latter, when the happening of the event becomes impossible.
Exception.-- Where, under a transfer of property, a person becomes entitled to
an interest therein upon attaining a particular age, and the transferor also
gives to him absolutely the income to arise from such interest before he
reaches that age, or directs the income or so much thereof as may be necessary
to be applied for his benefit, such interest is not contingent.
22.
Transfer to members of a class who attain a particular age.- Where, on a
transfer of property, an interest therein is created in favour of such members
only of a class as shall attain a particular age, such interest does not vest
in any member of the class who has not attained that age.
23.
Transfer contingent on happening of specified uncertain event.- Where, on a
transfer of property, an interest therein is to accrue to a specified person if
a specified uncertain event shall happen, and no time is mentioned for the
occurrence of that event, the interest fails unless such event happens before,
or at the same time as, the intermediate or precedent interest ceases of exist.
24.
Transfer to such of certain persons as survive at some period not specified.-
Where, on a transfer of property, an interest therein is to accrue to such of
certain persons as shall be surviving at some period, but the exact period is
not specified, the interest shall go to such of them as shall be alive when the
intermediate or precedent interest ceases to exist, unless a contrary intention
appears from the terms of the transfer. Illustration A transfers property to B
for life, and after his death to C and D, equally to be divided between them,
or to the survivor of them. C dies during the life of B. D survives B. At B' s
death the property passes to D.
25.
Conditional transfer.- An interest created on a transfer of property and
dependent upon a condition fails if the fulfilment of the condition is
impossible, or is forbidden by law, or is of such a nature that, if permitted,
it would defeat the provisions of any law, or is fraudulent, or involves or
implies injury to the person or property of another, or the Court regards it as
immoral or opposed to public policy. Illustrations
(a) A
lets a farm to B on condition that he shall walk a hundred miles in an hour.
The lease is void.
(b) A
gives Rs. 500 to B on condition that he shall marry A' s daughter C. At the
date of the transfer C was dead. The transfer is void.
(c) A
transfers Rs. 500 to B on condition that she shall murder C. The transfer is
void.
(d) A
transfers Rs. 500 to his niece C if she will desert her husband. The transfer
is void.
26.
Fulfilment of condition precedent.- Where the terms of a transfer of property
impose a condition to be fulfilled before a person can take an interest in the
property, the condition shall be deemed to have been fulfilled if it has been
substantially complied with. Illustrations
(a) A
transfers Rs. 5, 000 to B on condition that he shall marry with the consent of
C, D and E. E dies. B marries with the consent of C and D. B is deemed to have
fulfilled the condition.
(b) A
transfers Rs. 5, 000 to B on condition that he shall marry with the consent of
C, D and E. B marries without the consent of C, D and E, but obtains their
consent after the marriage. B has not fulfilled the condition.
27.
Conditional transfer to one person coupled with transfer to another on failure
of prior disposition.- Where, on a transfer of property, an interest therein is
created in favour of one person, and by the same transaction an ulterior
disposition of the same interest is made in favour of another, if the prior
disposition under the transfer shall fail, the ulterior disposition shall take
effect upon the failure of the prior disposition, although the failure may not
have occurred in the manner contemplated by the transferor. But, where the
intention of the parties to the transaction is that the ulterior disposition
shall take effect only in the event of the prior disposition failing in a
particular manner, the ulterior disposition shall not take effect unless the
prior disposition fails in that manner. Illustrations
(a) A
transfers Rs. 500 to B on condition that he shall execute a certain lease
within three months after A' s death, and, if he should neglect to do so, to C.
B dies in A' s life- time. The disposition in favour of C takes effect.
(b) A
transfers property to his wife; but, in case she should die in his life- time,
transfers to B that which he had transferred to her. A and his wife perish
together, under circumstances which make it impossible to prove that she died
before him. The disposition in favour of B does not take effect.
28.
Ulterior transfer conditional on happening or not happening of specified
event.- On a transfer of property an interest therein may be created to accrue
to any person with the condition superadded that in case a specified uncertain
event shall happen such interest shall pass to another person, or that in case
a specified uncertain event shall not happen such interest shall pass to
another person. In each case the dispositions are subject to the rules
contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.
29.
Fulfilment of condition subsequent.- An ulterior disposition of the kind
contemplated by the last preceding section cannot take effect unless the
condition is strictly fulfilled. Illustration A transfers Rs. 500 to B, to be
paid to him on his attaining his majority or marrying, with a proviso that, if
B dies a minor or marries without C' s consent, the Rs. 500 shall go to D. B
marries when only 17 years of age, without C' s consent. The transfer to D
takes effect.
30. Prior
disposition not affected by invalidity of ulterior disposition.- If the
ulterior disposition is not valid, the prior disposition is not affected by it.
Illustration A transfers a farm to B for her life, and, if
she do not desert her husband, to C. B is entitled to the farm during her life
as if no condition had been inserted.
31.
Condition that transfer shall cease to have effect in case specified uncertain
event happens or does not happen.- Subject to the provisions of section 12, on
a transfer of property an interest therein may be created with the condition
superadded that it shall cease to exist in case a specified uncertain event
shall happen, or in case a specified uncertain event shall not happen.
Illustrations
(a) A
transfers a farm to B for his life, with a proviso that, in case B cuts down a
certain wood, the transfer shall cease to have any effect. B cuts down the
wood. He loses his life- interest in the farm.
(b) A
transfers a farm to B, provided that, if B shall not go to
32. Such
condition must not be invalid.- In order that a condition that an interest
shall cease to exist may be valid, it is necessary that the event to which it
relates be one which could legally constitute the condition of the creation of
an interest.
33.
Transfer conditional on performance of act, no time being specified for
performance.- Where, on a transfer of property, an interest therein is created
subject to a condition that the person taking it shall perform a certain act,
but no time is specified for the performance of the act, the condition is
broken when he renders impossible, permanently or for an indefinite period, the
performance of the act.
34.
Transfer conditional on performance of act, time being specified.- Where an act
is to be performed by a person either as a condition to be fulfilled before an
interest created on a transfer of property is enjoyed by him, or as a condition
on the non- fulfilment of which the interest is to pass from him to another
person, and a time is specified for the performance of the act, if such
performance within the specified time is prevented by the fraud of a person who
would be directly benefited by non- fulfilment of the condition, such further
time shall as against him be allowed for performing the act as shall be
requisite to make up for the delay caused by such fraud. But if no time is
specified for the performance of the act, then, if its performance is by the
fraud of a person interested in the non- fulfilment of the condition rendered
impossible or indefinitely postponed, the condition shall as against him be
deemed to have been fulfilled.
Election
35.
Election when necessary.- Where a person professes to transfer property which
he has no right to transfer, and as part of the same transaction confers any
benefit on the owner of the property, such owner must elect either to confirm
such transfer or to dissent from it; and in the latter case he shall relinquish
the benefit so conferred, and the benefit so relinquished shall revert to the
transferor or his representative as if it had not been disposed of, subject
nevertheless, where the transfer is gratuitous, and the transferor has, before
the election, died or otherwise become incapable of making a fresh transfer,
and in all cases where the transfer is for consideration, to the charge of
making good to the disappointed transferee the amount or value of the property
attempted to be transferred to him. Illustrations The farm of Sultanpur is the
property of C and worth Rs. 800. A by an instrument of gift professes to
transfer it to B, giving by the same instrument Rs. 1, 000 to C. C elects to
retain the farm. He forfeits the gift of Rs. 1, 000. In the same case, A dies
before the election. His representative must out of the Rs. 1, 000 pay Rs. 800
to B. The rule in the first paragraph of this section applies whether the
transferor does or does not believe that which he professes to transfer to be
his own. A person taking no benefit directly under a transaction, but deriving
a benefit under it indirectly, need not elect. A person who in his one capacity
takes a benefit under the transaction may in another dissent therefrom. Exception
to the last preceding four rules.-- Where a particular benefit is expressed to
be conferred on the owner of the property which the transferor professes to
transfer, and such benefit is expressed to be in lieu of that property, if such
owner claim the property, he must relinquish the particular benefit, but he is
not bound to relinquish any other benefit conferred upon him by the same
transaction. Acceptance of the benefit by the person on whom it is conferred
constitutes an election by him to confirm the transfer, if he is aware of his
duty to elect and of those circumstances which would influence
the judgment of a reasonable man in making an election, or
if he waives enquiry into the circumstances. Such knowledge or waiver shall, in
the absence of evidence to the contrary, be presumed, if the person on whom the
benefit has been conferred has enjoyed it for two years without doing any act
to express dissent. Such knowledge of waiver may be inferred from any act of
his which renders it impossible to place the persons interested in the property
professed to be transferred in the same condition as if such act had not been
done. Illustration A transfers to B an estate to which C is entitled, and as
part of the same transaction gives C a coal- mine. C takes possession of the
mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
If he does not within one year after the date of the transfer signify to the
transferor or his representatives his intention to confirm or to dissent from
the transfer, the transferor or his representative may, upon the expiration of
that period, require him to make his election; and, if he does not comply with
such requisition within a reasonable time after he has received it, he shall be
deemed to have elected to confirm the transfer. In case of disability, the
election shall be postponed until the disability ceases, or until the election
is made by some competent authority. Apportionment
36.
Apportionment of periodical payments determination of interest of person
entitled.- In the absence of a contract or local usage to the contrary, all
rents, annuities, pensions, dividends and other periodical payments in the
nature of income shall, upon the transfer of the interest of the person
entitled to receive such payments, be deemed, as between the transferor and the
transferee, to accrue due from day to day, and to be apportionable accordingly,
but to be payable on the days appointed for the payment thereof.
37.
Apportionment of benefit of obligation on severance.- When, in consequence of a
transfer, property is divided and held in several shares, and thereupon the
benefit of any obligation relating to the property as a whole passes from one
to several owners of the property, the corresponding duty shall, in the absence
of a contract to the contrary amongst the owners, be performed in favour of
each of such owners in proportion to the value of his share in the property,
provided that the duty can be severed and that the severance
does not substantially increase the burden of the
obligation; but if the duty cannot be severed, or if the severance would
substantially increase the burden of the obligation, the duty shall be
performed for the benefit of such one of the several owners as they shall
jointly designate for that purpose: Provided that no person on whom the burden
of the obligation lies shall be answerable for failure to discharge it in
manner provided by this section, unless and until he has had reasonable notice
of the severance. Nothing in this section applies to leases for agricultural
purposes unless and until the State Government by notification in the Official
Gazette so directs. Illustrations
(a) A
sells to B, C and D a house situate in a village and leased to E at an annual
rent of Rs. 30 and delivery of one fat sheep, B having provided half the
purchase- money and C and D one- quarter each. E, having notice of this, must
pay Rs. 15 to B, Rs. 7 1 2 to C, and Rs. 7 1 2 to D, and must deliver the sheep
according to the joint direction of B, C and D.
(b) In
the same case, each house in the village being bound to provide ten days'
labour each year on a dyke to prevent inundation, E had agreed as a term of his
lease to perform this work for A. B, C and D severally require E to perform the
ten days' work due on account of the house of each. E is not bound to do more
than ten days' work in all, according to such directions as B, C and D may join
in giving.
(B)
Transfer of Immoveable Property
38.
Transfer by person authorised only under certain circumstances to transfer.-
Where any person, authorized only under circumstances in their nature variable
to dispose of immoveable property, transfers such property for consideration,
alleging the existence of such circumstances, they shall, as between the
transferee on the one part and the transferor and other persons (if any)
affected by the transfer on the other part, be deemed to have existed, if the
transferee, after using reasonable care to ascertain the existence of such
circumstances, has acted in good faith. Illustration A, a Hindu widow, whose
husband has left collateral heirs, alleging that the property held by her as
such is insufficient for her maintenance, agrees, for purposes neither
religious nor charitable, to sell a field, part of such property, to B. B
satisfies himself by reasonable enquiry that the income of the property is
insufficient for A' s maintenance, and that the sale of the field is necessary,
and acting in good faith, buys the field from A. As between B on the one part
and A and the collateral heirs on the other part, a necessity for the sale
shall be deemed to have existed.
39.
Transfer where third person is entitled to maintenance.- Where a third person
has a right to receive maintenance, or a provision for advancement or marriage,
from the profits of immoveable property, and such property is transferred 1[ ,
the right may be enforced against the transferee, if he has notice 2[ thereof]
or if the transfer is gratuitous; but not against a transferee for
consideration and without notice of the right, nor against such property in his
hands. 3[
40. Burden
of obligation imposing restriction on use of land,- Where, for the more
beneficial enjoyment of his own immoveable property, a third person has,
independently of any interest in the immoveable property of another or of any
easement thereon, a right to restrain the enjoyment 4[ in a particular manner
of the latter property], or or of obligation annexed to ownership but not
amounting to interest or easement.- where a third person is entitled to the
benefit of an obligation arising out of contract and annexed to the ownership
of immoveable property, but not amounting to an interest therein or easement
thereon, such right or obligation may be enforced against a transferee with
notice thereof or a gratuitous transferee of the property affected thereby, but
not against a transferee for consideration and without notice of the right or
obligation, nor against such property in his hands. Illustration A contracts to
sell Sultanpur to B. While the contract is still in force he sells Sultanpur to
C, who has notice of the contract. B may enforce the contract against C to the
same extent as against A.
41.
Transfer by ostensible owner.- Where, with the consent, express or implied, of
the persons interested in immoveable property, a person is the ostensible owner
of such property and transfers the same for consideration, the transfer shall
not be voidable on the ground that the transferor was not authorized to make
it: provided that the transferee, after taking reasonable care to ascertain
that the transferor had power to make the transfer, has acted in good faith.
1. The words" with the intention of defeating such
right" omitted by Act 20 of 1929, s. 11. 2 Subs. by s. 11, ibid.,
for" of such intention". 3 The illustration omitted by s. 11, ibid. 4
Subs. by s. 12, ibid., for" of the latter property or to compel its
enjoyment in a particular manner".
42.
Transfer by person having authority to revoke former transfer.- Where a person
transfers any immoveable property, reserving power to revoke the transfer, and
subsequently transfers the property for consideration to another transferee,
such transfer operates in favour of such transferee (subject to any condition
attached to the exercise of the power) as a revocation of the former transfer
to the extent of the power. Illustration A lets a house to B, and reserves
power to revoke the lease if, in the opinion of a specified surveyor, B should
make a use of it detrimental to its value. Afterwards A, thinking that such a
use has been made, lets the house to C. This operates as a revocation of B' s
lease subject to the opinion of the surveyor as to B' s use of the house having
been detrimental to its value.
43. Transfer
by unauthorized person who subsequently acquires interest in property
transferred.- Where a person 1[ fraudulently or] erroneously represents that he
is authorized to transfer certain immovable property, and professes to transfer
such property for consideration, such transfer shall, at the option of the
transferee, operate on any interest which the transferor may acquire in such
property at any time during which the contract of transfer subsists. Nothing in
this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option. Illustration
A, a Hindu who has separated from his father B, sells to C three fields, X, Y
and Z, representing that A is authorized to transfer the same. Of these fields
Z does not belong to A, it having been retained by B on the partition; but on
B' s dying A as heir obtains Z. C, not having rescinded the contract of sale,
may require A to deliver Z to him.
44. Transfer
by one co- owner.- Where one of two or more co- owners of immoveable property
legally competent in that behalf transfers his share of such property or any
interest therein, the transferee acquires, as to such share or interest, and so
far as is necessary to give effect to the transfer, the transferor' s right to
joint possession or other common or part enjoyment of the property, and to
enforce a partition of the same, but subject to the conditions and liabilities
affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling- house belonging to an undivided
family is not a member of the family, nothing in this section shall be deemed
to entitle him to joint possession or other common or part enjoyment of the
house.
1. Ins. by Act 20 of 1929, s. 13.
45. Joint
transfer for consideration.- Where immoveable property is transferred for
consideration to two or more persons, and such consideration is paid out of a
fund belonging to them in common, they are, in the absence of a contract to the
contrary, respectively entitled to interests in such property identical, as
nearly as may be, with the interests to which they were respectively entitled
in the fund; and, where such consideration is paid out of separate funds
belonging to them respectively, they are, in the absence of a contract to the
contrary, respectively entitled to interests in such property in proportion to
the shares of the consideration which they respectively advanced. In the
absence of evidence as to the interests in the fund to which they were
respectively entitled, or as to the shares which they respectively advanced,
such persons shall be presumed to be equally interested in the property.
46.
Transfer for consideration by persons having distinct interests.- Where
immoveable property is transferred for consideration by persons having distinct
interests therein, the transferors are, in the absence of a contract to the
contrary, entitled to share in the consideration equally, where their interest
in the property were of equal value, and, where such interests were of unequal
value, proportionately to the value of their respective interests.
Illustrations
(a) A,
owing a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange
an eighth share of that mauza for a quarter share of mauza Lalpura. There being
no agreement to the contrary, A is entitled to an eighth share in Lalpura, and
B and C each to a sixteenth share in that mauza.
(b) A,
being entitled to a life- interest in mauza Atrali and B and C to the
reversion, sell the mauza for Rs. 1, 000. A' s life- interest is ascertained to
be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out
of the purchase- money. B and C to receive Rs. 400.
47. Transfer
by co- owners of share in common property.- Where several co- owners of
immoveable property transfer a share therein without specifying that the
transfer is to take effect on any particular share or shares of the
transferors, the transfer, as among such transferors, takes effect on such
shares equally where the shares were equal, and, where they were unequal,
proportionately to the extent of such shares. Illustration A, the owner of an
eight- anna share, and B and C, each the owner of a four- anna share, in mauza
Sultanpur, transfer a two- anna share in the mauza to D, without specifying
from which of their several shares the transfer is made. To give effect to the
transfer one- anna share is taken from the share of A, and half- an- anna share
from each of the shares of B and C.
48.
Priority of rights created by transfer.- Where a person purports to create by
transfer at different times rights in or over the same immoveable property, and
such rights cannot all exist or be exercised to their full extent together,
each later created right shall, in the absence of a special contract or
reservation binding the earlier transferees, be subject to the rights
previously created.
49.
Transferee' s right under policy.- Where immoveable property is transferred for
consideration, and such property or any part thereof is at the date of the
transfer insured against loss or damage by fire, the transferee, in case of
such loss or damage, may, in the absence of a contract to the contrary, require
any money which the transferor actually receives under the policy, or so much
thereof as may be necessary, to be applied in reinstating the property.
50. Rent
bona fide paid to holder under defective title.- No person shall be chargeable
with any rents or profits of any immoveable property, which he has in good
faith paid or delivered to any person of whom he in good faith held such
property, notwithstanding it may afterwards appear that the person to whom such
payment or delivery was made had no right to receive such rents or profits.
Illustration A lets a field to B at a rent of Rs. 50, and then transfers the
field to C. B, having no notice of the transfer, in good faith pays the rent to
A. B is not chargeable with the rent so paid.
51.
Improvements made by bona fide holders under defective titles.- When the
transferee of immoveable property makes any improvement on the property,
believing in good faith that he is absolutely entitled thereto, and he is
subsequently evicted therefrom by any person having a better title, the
transferee has a right to require the person causing the eviction either to
have the value of the improvement estimated and paid or secured to the
transferee, or to sell his interest in the property to the transferee at the
then market- value thereof, irrespective of the value of such improvement. The
amount to be paid or secured in respect of such improvement shall be the
estimated value thereof at the time of the eviction. When, under the
circumstances aforesaid, the transferee has planted or sown on the property
crops which are growing when he is evicted therefrom, he is entitled to such
crops and to free ingress and egress to gather and carry them.
52.
Transfer of property pending suit relating thereto.- During the 1[ pendency] in
any Court having authority 2[ 3[ within the limits of India excluding the State
of Jammu and Kashmir] or established beyond such limits] by 4[ the Central
Government 5[ ], of 6[ any] suit or proceeding 7[ which is not collusive and]
in which any right to immoveable 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. 7[ Explanation.--
For the purposes of this section, the pendency of a suit or proceeding shall be
deemed to commence from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a final decree or
order, and complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of any period
of limitation prescribed for the execution thereof by any law for the time
being in force.]
53. 8[
Fraudulent transfer.-
(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. Nothing in this sub- section shall impair the rights of a
transferee in good faith and for consideration. Nothing in this sub- section
shall affect any law for the time being in force relating to insolvency. A suit
instituted by a creditor (which term includes a decree- holder whether he has
or has not applied for execution of his decree) to avoid a transfer on the
ground that it has been made with intent to defeat or delay the creditors of
the transferor, shall be instituted on behalf of, or for the benefit of, all
the creditors.
1. Subs. by Act 20 of 1929, s. 14, for" active
prosecution". 2 Subs. by the A. O. 1950, for" in the Provinces or
established beyond the limits of the Provinces". 3 Subs. by Act 3 of 1951,
s. 3 and Sch., for" within the limits of Part A States and Part C States"
(w. e. f. 1- 4- 1951 ). 4 Subs. by the A. O. 1937, for" the G. G. in
C." 5 The words" or the Crown Representative" rep. by the A. O.
1948. 6 Subs. by Act 20 of 1929, s. 14, for" a contentious". 7 Ins.
by s. 14, ibid. 8 Subs. by s. 15, ibid., for the original section.
(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. For the purposes of this sub- section, no transfer made without
consideration shall be deemed to have been made with intent to defraud by
reason only that a subsequent transfer for consideration was made.]
53A. 1[
Part performance.- Where any person contracts to transfer for consideration any
immoveable property by writing signed by him or on his behalf from which the
terms necessary to constitute the transfer can be ascertained with reasonable
certainty, and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee, being
already in possession, continues in possession in part performance of the
contract and has done some act in furtherance of the contract, and the
transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that the contract, though required to be registered, has
not been registered, or, where there is an instrument of transfer, that the
transfer has not been completed in the manner prescribed therefor by the law
for the time being in force, the transferor or any person claiming under him
shall be debarred from enforcing against the transferee and persons claiming
under him any right in respect of the property of which the transferee has
taken or continued in possession, other than a right expressly provided by the
terms of the contract: Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no notice of the contract or
of the part performance thereof.] CHAPTER III OF SALES OF IMMOVEABLE PROPERTY
CHAPTER III OF SALES OF IMMOVEABLE PROPERTY
54. "
1. Ins. by Act 20 of 1929, s. 16.
Sale how made.- 1[ Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees and upwards, or in the
case of a reversion or other intangible thing, can be made only by a registered
instrument. 1[ In the case of tangible immoveable property of a value less than
one hundred rupees, such transfer may be made either by a registered instrument
or by delivery of the property. Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person as he directs, in
possession of the property. Contract for sale.- A contract for the sale of
immovable property is a contract that a sale of such property shall take place on
terms settled between the parties. It does not, of itself, create any interest
in or charge on such property.
55.
Rights and liabilities of buyer and seller.- In the absence of a contract to
the contrary, the buyer and the seller of immoveable property respectively are
subject to the liabilities, and have the rights, mentioned in the rules next
following, or such of them as are applicable to the property sold:
(1) The
seller is bound--
(a) to
disclose to the buyer any material defect in the property 2[ or in the seller'
s title thereto] of which the seller is, and the buyer is not, aware, and which
the buyer could not with ordinary care discover;
(b) to
produce to the buyer on his request for examination all documents of title
relating to the property which are in the seller' s possession or power;
(c) to
answer to the best of his information all relevant questions put to him by the
buyer in respect to the property or the title thereto;
(d) on
payment or tender of the amount due in respect of the price, to execute a
proper conveyance of the property when the buyer tenders it to him for
execution at a proper time and place;
(e) between
the date of the contract of sale and the delivery of the property, to take as
much care of the property and
1. As to limitation to the territorial operation of
paragraphs 2 and 3 of s. 54, see s. 1, supra. These paragraphs extend to every
cantonment see s. 287 of the Cantonments Act, 1924 (2 of 1924 ). 2 Ins. by Act
20 of 1929, s. 17.
all documents of title relating thereto which are in his
possession as an owner of ordinary prudence would take of such property and
documents;
(f) to
give, on being so required, the buyer, or such person as he directs, such
possession of the property as its nature admits;
(g) to pay
all public charges and rent accrued due in respect of the property up to the
date of the sale, the interest on all incumbrances on such property due on such
date, and, except where the property is sold subject to incumbrances, to
discharge all incumbrances on the property then existing.
(2) The
seller shall be deemed to contract with the buyer that the interest which the
seller professes to transfer to the buyer subsists and that he has power to
transfer the same: Provided that, where the sale is made by a person in a
fiduciary character, he shall be deemed to contract with the buyer that the
seller has done no act whereby the property is incumbered or whereby he is
hindered from transferring it. The benefit of the contract mentioned in this
rule shall be annexed to, and shall go with, the interest of the transferee as
such, and may be enforced by every person in whom that interest is for the
whole or any part thereof from time to time vested.
(3) Where
the whole of the purchase- money has been paid to the seller, he is also bound
to deliver to the buyer all documents of title relating to the property which
are in the seller' s possession or power: Provided that, (a) where the seller
retains any part of the property comprised in such documents, he is entitled to
retain them all, and, (b) where the whole of such property is sold to different
buyers, the buyer of the lot of greatest value is entitled to such documents.
But in case (a) the seller, and in case (b) the buyer, of the lot of greatest
value, is bound, upon every reasonable request by the buyer, or by any of the
other buyers, as the case may be, and at the cost of the person making the
request, to produce the said documents and furnish such true copies thereof or
extracts therefrom as he may require; and in the meantime, the seller, or the
buyer of the lot of greatest value, as the case may be, shall keep the said
documents safe, uncancelled and undefaced, unless prevented from so doing by fire
or other inevitable accident.
(4) The
seller is entitled--
(a) to the
rents and profits of the property till the ownership thereof passes to the buyer;
(b) where
the ownership of the property has passed to the buyer before payment of the
whole of the purchase- money, to a charge upon the property in the hands of the
buyer, 1[ any transferee without consideration or any transferee with notice of
the non- payment], for the amount of the purchase- money, or any part thereof
remaining unpaid, and for interest on such amount or part 1[ from the date on
which possession has been delivered].
(5) The
buyer is bound--
(a) to
disclose to the seller any fact as to the nature or extent of the seller' s
interest in the property of which the buyer is aware, but of which he has
reason to believe that the seller is not aware, and which materially increases
the value of such interest;
(b) to
pay or tender, at the time and place of completing the sale, the purchase-
money to the seller or such person as he directs: provided that, where the
property is sold free from incumbrances, the buyer may retain out of the
purchase- money the amount of any incumbrances on the property existing at the
date of the sale, and shall pay the amount so retained to the persons entitled
thereto;
(c) where
the ownership of the property has passed to the buyer, to bear any loss arising
from the destruction, injury or decrease in value of the property not caused by
the seller;
(d) where
the ownership of the property has passed to the buyer, as between himself and
the seller, to pay all public charges and rent which may become payable in
respect of the property, the principal moneys due on any incumbrances subject
to which the property is sold, and the interest thereon afterwards accruing
due.
(6) The
buyer is entitled--
(a) where
the ownership of the property has passed to him, to the benefit of any
improvement in, or increase in value of, the property, and to the rents and
profits thereof;
1. Ins. by Act 20 of 1929, s. 17.
(b)
unless he has improperly declined to accept delivery of the property, to a
charge on the property, as against the seller and all persons claiming under
him, 1[ to the extent of the seller' s interest in the property, for the amount
of any purchase- money properly paid by the buyer in anticipation of the
delivery and for interest on such amount; and, when he properly declines to
accept the delivery, also for the earnest (if any) and for the costs (if any) awarded
to him of a suit to compel specific performance of the contract or to obtain a
decree for its rescission. An omission to make such disclosures as are
mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause
(a), is fraudulent.
56. 2[
Marshalling by subsequent purchaser.- If the owner of two or more properties
mortgages them to one person and then sells one or more of the properties to
another person, the buyer is, in the absence of a contract to the contrary,
entitled to have the mortgage- debt satisfied out of the property or properties
not sold to him, so far as the same will extend, but not so as to prejudice the
rights of the mortgagee or persons claiming under him or of any other person
who has for consideration acquired an interest in any of the properties.]
Discharge of Incumbrances on
57.
Provision by Court for incumbrances and sale freed therefrom.- (a) Where immoveable
property subject to any incumbrance, whether immediately payable or not, is
sold by the Court or in execution of a decree, or out of Court, the Court may,
if it thinks fit, on the application of any party to the sale, direct or allow
payment into Court,--
(1) in
case of an annual or monthly sum charged on the property, or of a capital sum
charged on a determinable interest in the property-- of such amount as, when
invested in securities of the Central Government, the Court considers will be
sufficient, by means of the interest thereof, to keep down or otherwise provide
for that charge, and
(2) in
any other case of a capital sum charged on the property-- of the amount
sufficient to meet the incumbrance and any interest due thereon.
1. The words" with notice of the payment" omitted
by Act 20 of 1929, s. 17. 2 Subs. by s. 18, ibid., for the original section.
But in either case there shall also be paid into Court such
additional amount as the Court considers will be sufficient to meet the
contingency of further costs, expenses and interest, and any other contingency,
except depreciation of investments, not exceeding one- tenth part of the
original amount to be paid in, unless the Court for special reasons (which it
shall record) thinks fit to require a large additional amount.
(b)
Thereupon the Court may, if it thinks fit, and after notice to the
incumbrancer, unless the Court, for reasons to be recorded in writing, thinks
fit to dispense with such notice, declare the property to be freed from the
incumbrance, and make any order for conveyance, or vesting order, proper for
giving effect to the sale, and give directions for the retention and investment
of the money in Court.
(c) After
notice served on the persons interested in or entitled to the money or fund in
Court, the Court may direct payment or transfer thereof to the persons entitled
to receive or give a discharge for the same, and generally may give directions
respecting the application or distribution of the capital or income thereof.
(d) An
appeal shall lie from any declaration, order or direction under this section as
if the same were a decree.
(e) In
this section" Court" means (1) a High Court in the exercise of its
ordinary or extraordinary original civil jurisdiction, (2) the Court of a
District Judge within the local limits of whose jurisdiction the property or
any part thereof is situate, (3) any other Court which the State Government
may, from time to time, by notification in the Official Gazette, declare to be
competent to exercise the jurisdiction conferred by this section. CHAPTER IV OF
MORTGAGES OF IMMOVEABLE PROPERTY AND CHARGES CHAPTER IV OF MORTGAGES OF
IMMOVEABLE PROPERTY AND CHARGES
58. "
Mortgage"," mortgagor"," mortgagee"," mortgage-
money" and" mortgage- deed" defined.- (a) 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. The transferor is called a mortgagor, the
transferee a mortgagee; the principal money and interest of which payment is
secured for the time being are called the mortgage- money, and the instrument
(if any) by which the transfer is effected is called a mortgage- deed.
Simple mortgage.- (b) Where, without delivering possession
of the mortgaged property, the mortgagor binds himself personally to pay the
mortgage- money, and agrees, expressly or impliedly, that, in the event of his
failing to pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold and the proceeds of sale to be applied,
so far as may be necessary, in payment of the mortgage- money, the transaction
is called a simple mortgage and the mortgagee a simple mortgagee. Mortgage by
conditional sale.- (c) Where the mortgagor ostensibly sells the mortgaged
property-- on condition that on default of payment of the mortgage- money on a
certain date the sale shall become absolute, or on condition that on such
payment being made the sale shall become void, or on condition that on such
payment being made the buyer shall transfer the property to the seller, the
transaction is called a mortgage by conditional sale and the mortgagee a
mortgagee by conditional sale: 1[ Provided that no such transaction shall be
deemed to be a mortgage, unless the condition is embodied in the document which
effects or purports to effect the sale.] Usufructuary mortgage.- (d) Where the
mortgagor delivers possession 1[ or expressly or by implication binds himself
to deliver possession] of the mortgaged property to the mortgagee, and
authorizes him to retain such possession until payment of the mortgage- money,
and to receive the rents and profits accruing from the property 2[ or any part
of such rents and profits and to appropriate the same] in lieu of interest, or
in payment of the mortgage- money, or partly in lieu of interest 3[ or] partly
in payment of the mortgage- money, the transaction is called an usufructuary
mortgage and the mortgagee an usufructuary mortgagee. English mortgage.- (e)
Where the mortgagor binds himself to re- pay the mortgage- money on a certain
date, and transfers the mortgaged property absolutely to the mortgagee, but
subject to a proviso that he will retransfer it to the mortgagor upon payment
of the mortgage- money as agreed, the transaction is called an English
mortgage. Mortgage by deposit of title- deeds.- 4[ (f) Where a person in any of
the following towns, namely, the towns of
1. Ins. by Act 20 of 1929, s. 19. 2 Subs. by s. 19, ibid.,
for" and to appropriate them". 3 Subs. by s. 19, ibid., for"
and". 4 Added by s. 19, ibid. 5 Subs. by the A. O. 1948, for"
1[ town which the 2[ State Government concerned] may, by
notification in the Official Gazette, specify in this behalf, delivers to a
creditor or his agent documents of title to immoveable property, with intent to
create a security thereon, the transaction is called a mortgage by deposit of
title- deeds. Anomalous mortgage.- (g) A mortgage which is not a simple
mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English
mortgage or a mortgage by deposit of title- deeds within the meaning of this
section is called an anomalous mortgage.]
59. 3[
Mortgage when to be by assurance.- Where the principal money secured is one
hundred rupees or upwards, a mortgage 4[ other than a mortgage by deposit of
title- deeds] can be effected only by a registered instrument signed by the
mortgagor and attested by at least two witnesses. Where the principal money
secured is less than one hundred rupees, a mortgage may be effected either by
5[ a registered instrument] signed and attested as aforesaid, or (except in the
case of a simple mortgage) by delivery of the property. 6[ .
59A. 7[
References to mortgagors and mortgagees to include persons deriving title from
them.- Unless otherwise expressly provided, references in this Chapter to
mortgagors and mortgagees shall be deemed to include references to persons
deriving title from them respectively.]
1. For notifications relating to the towns of-- Ahmedabad,
see Gazette of India, 1935, Pt. I, p. 936. Bandra, Kurla and Ghatkoper- Kirol,
see Gazette of India, 1924, Pt. I, p. 1064. Cawnpore,
2. The words" G. G. in C." successively amended by
the A. O. 1937 and the A. O. 1950 to read as above. 3 As to limitation to the
territorial operation of s. 59, see s. 1, supra, S. 59 extends to every
cantonment-- see s. 287 of the Cantonments Act, 1924 (2 of 1924 ). 4 Ins. by
Act 20 of 1929, s. 20. 5 Subs. by Act 6 of 1904, s. 3, for" an
instrument". 6 The third paragraph was omitted by Act 20 of 1929, s. 20. 7
Ins. by s. 21, ibid.
Rights and Liabilities of Mortgagor
60. Right
of mortgagor to redeem. At any time after the principal money has become 1[
due], the mortgagor has a right, on payment or tender, at a proper time and
place, of the mortgage- money, to require the mortgagee (a) to deliver 2[ to
the mortgagor the mortgage- deed and all documents relating to the mortgaged
property which are in the possession or power of the mortgagee], (b) where the
mortgagee is in possession thereof to the mortgagor, and (c) at the cost of the
mortgagor either to re- transfer the mortgaged property to him or to such third
person as he may direct, or to execute and (where the mortgage has been
effected by a registered instrument) to have registered an acknowledgment in
writing that any right in derogation of his interest transferred to the
mortgagee has been extinguished: Provided that the right conferred by this
section has not been extinguished by act of the parties or by 3[ decree] of a
Court. The right conferred by this section is called a right to redeem and a
suit to enforce it is called a suit for redemption. Nothing in this section
shall be deemed to render invalid any provision to the effect that, if the time
fixed for payment of the principal money has been allowed to pass or no such
time has been fixed, the mortgagee shall be entitled to reasonable notice
before payment or tender of such money. Redemption of portion of mortgaged
property. Nothing in this section shall entitle a person interested in a share
only of the mortgaged property to redeem his own share only, on payment of a
proportionate part of the amount remaining due on the mortgage, except 4[ only]
where a mortgagee, or, if there are more mortgagees than one, all such
mortgagees, has or have acquired, in whole or in part, the share of a
mortgagor.
60A. 5[
Obligation to transfer to third party instead of re- transference to
mortgagor.-
(1) Where
a mortgagor is entitled to redemption, then, on the fulfilment of any conditions
on the fulfilment of which he would be entitled to require a re- transfer, he
may require the mortgagee, instead of retransferring the property, to assign
the mortgage- debt and transfer the mortgaged property to such third person as
the
1. Subs. by Act 20 of 1929, s. 22, for" payable".
2 Subs. by s. 22, ibid., for" the mortgage- deed, if any, to the
mortgagor". 3 Subs. by s. 22, ibid., for" order". 4 Ins. by s.
22, ibid. 5 Ss. 60A and 60B ins. by s. 23, ibid.
mortgagor may direct; and the mortgagee shall be bound to
assign and transfer accordingly.
(2) The
rights conferred by this section belong to and may be enforced by the mortgagor
or by any encumbrancer notwithstanding an intermediate encumbrance; but the
requisition of any encumbrancer shall prevail over a requisition of the
mortgagor and, as between encumbrancers, the requisition of a prior
encumbrancer shall prevail over that of a subsequent encumbrancer.
(3) The
provisions of this section do not apply in the case of a mortgagee who is or
has been in possession.
60B. Right
to inspection and production of documents.- A mortgagor, as long as his right
of redemption subsists, shall be entitled at all reasonable times, at his
request and at his own cost, and on payment of the mortgagee' s costs and
expenses in this behalf, to inspect and make copies or abstracts of, or
extracts from, documents of title relating to the mortgaged property which are
in the custody or power of the mortgagee.]
61. 1[
Right to redeem separately or simultaneously.- A mortgagor who has executed two
or more mortgages in favour of the same mortgagee shall, in the absence of a
contract to the contrary, when the principal money of any two or more of the
mortgages has become due, be entitled to redeem any one such mortgage
separately, or any two or more of such mortgages together.]
62. Right
of usufructuary mortgagor to recover possession.- In the case of a usufructuary
mortgage, the mortgagor has a right to recover possession of the property 2[
together with the mortgage- deed and all documents relating to the mortgaged
property which are in the possession or power of the mortgagee],--
(a) where
the mortgagee is authorized to pay himself the mortgage- money from the rents
and profits of the property,-- when such money is paid;
(b) where
the mortgagee is authorized to pay himself from such rents and profits 3[ or
any part thereof a part only of the mortgage- money],-- when the term, if any,
prescribed for the payment of the mortgage- money has expired and the mortgagor
pays or tenders to the mortgagee 4[ the mortgage- money or the balance thereof]
or deposits it in Court as hereinafter provided.
1. Subs. by Act 20 of 1929, s. 24, for the original section.
2 Ins. by s. 25, ibid. 3 Subs. by s. 25, ibid., for" the interest of the
principal money". 4 Subs. by s. 25, ibid., for" the principal
money".
63.
Accession to mortgaged property.- Where mortgaged property in possession of the
mortgagee has, during the continuance of the mortgage, received any accession,
the mortgagor, upon redemption, shall, in the absence of a contract to the
contrary, be entitled as against the mortgagee to such accession. Accession
acquired in virtue of transferred ownership.- Where such accession has been
acquired at the expense of the mortgagee, and is capable of separate possession
or enjoyment without detriment to the principal property, the mortgagor
desiring to take the accession must pay to the mortgagee the expense of
acquiring it. If such separate possession or enjoyment is not possible, the
accession must be delivered with the property; the mortgagor being liable, in
the case of an acquisition necessary to preserve the property from destruction,
forfeiture or sale, or made with his assent, to pay the proper cost thereof, as
an addition to the principal money, 1[ with interest at the same rate as is
payable on the principal, or, where no such rate is fixed, at the rate of nine
per cent. per annum]. In the case last mentioned the profits, if any, arising
from the accession shall be credited to the mortgagor. Where the mortgage is
usufructuary and the accession has been acquired at the expense of the
mortgagee, the profits, if any, arising from the accession shall, in the
absence of a contract to the contrary, be set off against interest, if any,
payable on the money so expended.
63A. 2[
Improvements to mortgaged property.-
(1) Where
mortgaged property in possession of the mortgagee has, during the continuance
of the mortgage, been improved, the mortgagor, upon redemption, shall, in the
absence of a contract to the contrary, be entitled to the improvement; and the
mortgagor shall not, save only in cases provided for in sub- section (2), be
liable to pay the cost thereof.
(2) Where
any such improvement was effected at the cost of the mortgagee and was
necessary to preserve the property from destruction or deterioration or was
necessary to prevent the security from becoming insufficient, or was made in
compliance with the lawful order of any public servant or public authority, the
mortgagor shall, in the absence of a contract to the contrary, be liable to pay
the proper cost thereof as an addition to the principal money with interest at
the same rate as is payable on the principal, or, where no such rate is fixed,
at the rate of nine per cent. per annum, and the profits, if any, accruing by
reason of the improvement shall be credited to the mortgagor.]
1. Subs. by Act 20 of 1929, s. 26, for" at the same
rate of interest". 2 Ins. by s. 27, ibid.
64.
Renewal of mortgaged lease.- Where the mortgaged property is a lease 1[ , and
the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption,
shall, in the absence of a contract by him to the contrary, have the benefit of
the new lease.
65.
Implied contracts by mortgagor. In the absence of a contract to the contrary,
the mortgagor shall be deemed to contract with the mortgagee--
(a) that
the interest which the mortgagor professes to transfer to the mortgagee
subsists, and that the mortgagor has power to transfer the same;
(b) that
the mortgagor will defend, or, if the mortgagee be in possession of the
mortgaged property, enable him to defend, the mortgagor' s title thereto;
(c) that
the mortgagor will, so long as the mortgagee is not in possession of the
mortgaged property, pay all public charges accruing due in respect of the
property;
(d) and,
where the mortgaged property is a lease 2[ , that the rent payable under the
lease, the conditions contained therein, and the contracts binding on the
lessee have been paid, performed and observed down to the commencement of the
mortgage; and that the mortgagor will, so long as the security exists and the
mortgagee is not in possession of the mortgaged property, pay the rent reserved
by the lease, or, if the lease be renewed, the renewed lease, perform the
conditions contained therein and observe the contracts binding on the lessee,
and indemnify the mortgagee against all claims sustained by reason of the non-
payment of the said rent or the non- performance or non- observance of the said
conditions and contracts;
(e) and,
where the mortgage is a second or subsequent incumbrance on the property, that
the mortgagor will pay the interest from time to time accruing due on each
prior incumbrance as and when it becomes due, and will at the proper time
discharge the principal money due on such prior incumbrance. 3[ The benefit of
the contracts mentioned in this section shall be annexed to and shall go with
the interest of the mortgagee as such,
1. The words" for a term of years" omitted by Act
20 of 1929, s. 28. 2 The words" for a term of years" omitted by s.
29, ibid. 3 Certain words omitted by s. 29, ibid.
and may be enforced by every person in whom that interest is
for the whole or any part thereof from time to time vested.
65A. 1[
Mortgagor' s power to lease.-
(1)
Subject to the provisions of sub- section (2), a mortgagor, while lawfully in
possession of the mortgaged property, shall have power to make leases thereof
which shall be binding on the mortgagee.
(a) Every
such lease shall be such as would be made in the ordinary course of management
of the property concerned, and in accordance with any local law, custom or usage.
(b) Every
such lease shall reserve the best rent that can reasonably be obtained, and no
premium shall be paid or promised and no rent shall be payable in advance.
(c) No
such lease shall contain a covenant for renewal.
(d) Every
such lease shall take effect from a date not later than six months from the
date on which it is made.
(e) In the
case of a lease of buildings, whether leased with or without the land on which
they stand, the duration of the lease shall in no case exceed three years, and
the lease shall contain a covenant for payment of the rent and a condition of
re- entry on the rent not being paid within a time therein specified.
(3) The
provisions of sub- section (1) apply only if and as far as a contrary intention
is not expressed in the mortgage- deed; and the provisions of sub- section (2)
may be varied or extended by the mortgage- deed and, as so varied and extended,
shall, as far as may be, operate in like manner and with all like incidents,
effects and consequences, as if such variations or extensions were contained in
that sub- section.]
66. Waste
by mortgagor in possession.- A mortgagor in possession of the mortgaged
property is not liable to the mortgagee for allowing the property to
deteriorate; but he must not commit any act which is destructive or permanently
injurious thereto, if the security is insufficient or will be rendered
insufficient by such act. Explanation.-- A security is insufficient within the
meaning of this section unless the value of the mortgaged property exceeds by
one third, or, if consisting of buildings, exceeds by one- half, the amount for
the time being due on the mortgage.
1. Ins. by Act 20 of 1929, s. 30.
Rights and Liabilities of Mortgagee
67. Right
to foreclosure or sale.- In the absence of a contract to the contrary, the
mortgagee has, at any time after the mortgage- money has become 1[ due] to him,
and before a decree has been made for the redemption of the mortgaged property,
or the mortgage- money has been paid or deposited as hereinafter provided, a
right to obtain from the Court 2[ a decree] that the mortgagor shall be
absolutely debarred of his right to redeem the property, or 2[ a decree] that
the property be sold. A suit to obtain 2[ a decree] that a mortgagor shall be
absolutely debarred of his right to redeem the mortgaged property is called a
suit for foreclosure. Nothing in this section shall be deemed--
(a) 3[ to
authorize any mortgagee other than a mortgagee by conditional sale or a
mortgagee under an anomalous mortgage by the terms of which he is entitled to
foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as
such or a mortgagee by conditional sale as such to institute a suit for sale;
or]
(b) to
authorize a mortgagor who holds the mortgagee' s rights as his trustee or legal
representative, and who may sue for a sale of the property, to institute a suit
for foreclosure; or
(c) to
authorize the mortgagee of a railway, canal or other work in the maintenance of
which the public are interested, to institute a suit for foreclosure or sale;
or
(d) to
authorize a person interested in part only of the mortgage- money to institute
a suit relating only to a corresponding part of the mortgaged property, unless
the mortgagees have, with the consent of the mortgagor, severed their interests
under the mortgage.
67A. 4[
Mortgagee when bound to bring one suit on several mortgages.- A mortgagee who
holds two or more mortgages executed by the same mortgagor in respect of each
of which he has a right to obtain the same kind of decree under section 67, and
who sues to obtain such decree on any one of the mortgages, shall, in the
absence of a contract to the contrary, be bound to sue on all the mortgages in
respect of which the mortgage- money has become due.]
1. Subs. by Act 20 of 1929, s. 31, for" payable".
2 Subs. by s. 31, ibid., for" an order". 3 Subs. by s. 31, ibid., for
the original cl. 4 Ins. by s. 32, ibid.
68. 1[
Right to sue for mortgage money.-
(1) The
mortgagee has a right to sue for the mortgage- money in the following cases and
no others, namely:--
(a) where
the mortgagor binds himself to repay the same;
(b) where,
by any cause other than the wrongful act or default of the mortgagor or mortgagee,
the mortgaged property is wholly or partially destroyed or the security is
rendered insufficient within the meaning of section 66, and the mortgagee has
given the mortgagor a reasonable opportunity of providing further security
enough to render the whole security sufficient, and the mortgagor has failed to
do so;
(c) where
the mortgagee is deprived of the whole or part of his security by or in
consequence of the wrongful act or default of the mortgagor;
(d) where,
the mortgagee being entitled to possession of the mortgaged property, the
mortgagor fails to deliver the same to him, or to secure the possession thereof
to him without disturbance by the mortgagor or any person claiming under a
title superior to that of the mortgagor: Provided that, in the case referred to
in clause (a), a transferee from the mortgagor or from his legal representative
shall not be liable to be sued for the mortgage- money.
(2) Where
a suit is brought under clause (a) or clause (b) of sub- section (1), the Court
may, at its discretion, stay the suit and all proceedings therein,
notwithstanding any contract to the contrary, until the mortgagee has exhausted
all his available remedies against the mortgaged property or what remains of
it, unless the mortgagee abandons his security and, if necessary, re- transfers
the mortgaged property.]
69. Power
of sale when valid.-
(1) A
mortgagee, or any person acting on his behalf, shall, subject to the provisions
of this section, have power to sell or concur in selling the mortgaged
property, or any part thereof, in default of payment of the mortgage- money,
without the intervention of the Court, in the following cases and in no others,
namely:--]
(a) where
the mortgage is an English mortgage, and neither the mortgagor nor the
mortgagee is a Hindu,
1. Subs. by Act 20 of 1929, s. 33, for the original section.
2 S. 69 was numbered as sub- section (1) of that section, by s. 34, ibid. 3
Subs. by s. 34, ibid., for certain original words. 4 The words and
figures" Notwithstanding anything contained in the Trustees' and
Mortgagees' Powers Act, 1866" omitted by Act 48 of 1952, s. 3 and Sch. II.
Muhammadan or Buddhist 1[ or a member of any other race,
sect, tribe or class from time to time specified in this behalf by 2[ the State
Government], in the Official Gazette];
(b) where
3[ a power of sale without the intervention of the Court is expressly conferred
on the mortgagee by the mortgage- deed and] the mortgagee is 4[ the
Government];
(c) where
3[ a power of sale without the intervention of the Court is expressly conferred
on the mortgagee by the mortgage- deed and] the mortgaged property or any part
thereof 5[ was, on the date of the execution of the mortgage- deed], situate
within the towns of Calcutta, Madras, Bombay, 6[ 7[ or in any other 8[ town or
area which the State Government may, by notification in the Official Gazette, specify
in this behalf].
(2) 9[ ] No
such power shall be exercised unless and until--
(a) 11[ ]
notice in writing requiring payment of the principal money has been served on
the mortgagor, or on one of several mortgagors, and default has been made in
payment of the principal money, or of part thereof, for three months after such
service; or
1. Ins. by Act 3 of 1885, s. 5. 2 The words" the L. G.,
with the previous sanction of the G. G. in C." successively amended by the
A. O. 1937 and the A. O. 1950 to read as above. 3 Ins. by Act 20 of 1929, s.
34. 4 The words" the Secretary of State for India in Council"
successively amended by the A. O. 1937 and the A. O. 1950 to read as above. 5
Subs. by Act 20 of 1929, s. 34, for" is". 6 The word"
(b) 1[ ]
some interest under the mortgage amounting at least to five hundred rupees is
in arrear and unpaid for three months after becoming due.
(3) 2[ ]
When a sale has been made in professed exercise of such a power, the title of
the purchaser shall not be impeachable on the ground that no case had arisen to
authorize the sale, or that due notice was not given, or that the power was
otherwise improperly or irregularly exercised; but any person damnified by an
unauthorized or improper or irregular exercise of the power shall have his
remedy in damages against the person exercising the power.
(4) 3[ ]
The money which is received by the mortgagee, arising from the sale, after
discharge of prior incumbrances, if any, to which the sale is not made subject,
or after payment into Court under section 57 of a sum to meet any prior
incumbrance, shall, in the absence of a contract to the contrary, be held by
him in trust to be applied by him, first, in payment of all costs, charges and
expenses properly incurred by him as incident to the sale or any attempted
sale; and, secondly, in discharge of the mortgage- money and costs and other
money, if any, due under the mortgage; and the residue of the money so received
shall be paid to the person entitled to the mortgaged property, or authorised
to give receipts for the proceeds of the sale thereof.
(5) 4[
Nothing in this section or in section 69A applies to powers conferred before
the first day of July, 1882 .] 5[
69A. 6[
Appointment of receiver.-
(1) A
mortgagee having the right to exercise a power of sale under section 69 shall,
subject to the provisions of sub- section (2), be entitled to appoint, by
writing signed by him or on his behalf, a receiver of the income of the
mortgaged property or any part thereof.
(2) Any
person who has been named in the mortgage- deed and is willing and able to act
as receiver may be appointed by the mortgagee. If no person has been so named,
or if all persons named are unable or unwilling to act, or are dead, the
mortgagee may appoint any person to whose appointment the mortgagor agrees;
failing such
1. Cl. (2) was lettered (b) by Act 20 of 1929, s. 34. 2
Third paragraph numbered as sub- section (3) by s. 34, ibid. 3 Fourth paragraph
numbered as sub- section (4) by s. 34, ibid. 4 Subs. by s. 34, ibid., for the
original fifth paragraph. 5 Original last paragraph omitted by s. 34, ibid. 6
Ins. by s. 35, ibid.
agreement, the mortgagee shall be entitled to apply to the
Court for the appointment of a receiver, and any person appointed by the Court
shall be deemed to have been duly appointed by the mortgagee. A receiver may at
any time be removed by writing signed by or on behalf of the mortgagee and the
mortgagor, or by the Court on application made by either party and on due cause
shown. A vacancy in the office of receiver may be filled in accordance with the
provisions of this sub- section.
(3) A
receiver appointed under the powers conferred by this section shall be deemed
to be the agent of the mortgagor; and the mortgagor shall be solely responsible
for the receiver' s acts or defaults, unless the mortgage- deed otherwise
provides or unless such acts or defaults are due to the improper intervention
of the mortgagee.
(4) The
receiver shall have power to demand and recover all the income of which he is
appointed receiver, by suit, execution or otherwise, in the name either of the
mortgagor or of the mortgagee to the full extent of the interest which the
mortgagor could dispose of, and to give valid receipts accordingly for the
same, and to exercise any powers which may have been delegated to him by the
mortgagee in accordance with the provisions of this section.
(5) A
person paying money to the receiver shall not be concerned to inquire if the
appointment of the receiver was valid or not.
(6) The
receiver shall be entitled to retain out of any money received by him, for his
remuneration, and in satisfaction of all costs, charges and expenses incurred
by him as receiver, a commission at such rate not exceeding five per cent. on
the gross amount of all money received as is specified in his appointment, and,
if no rate is so specified, then at the rate of five per cent. on that gross
amount, or at such other rate as the Court thinks fit to allow, on application
made by him for that purpose.
(7) The
receiver shall, if so directed in writing by the mortgagee, insure to the
extent, if any, to which the mortgagee might have insured, and keep insured
against loss or damage by fire, out of the money received by him, the mortgaged
property or any part thereof being of an insurable nature.
(8)
Subject to the provisions of this Act as to the application of insurance money,
the receiver shall apply all money received by him as follows, namely,--
(i) in
discharge of all rents, taxes, land revenue, rates and outgoings whatever
affecting the mortgaged property;
(ii) in
keeping down all annual sums or other payments, and the interest on all principal
sums, having priority to the mortgage in right whereof he is receiver;
(iii) in
payment of his commission, and of the premiums on fire, life or other
insurances, if any, properly payable under the mortgage- deed or under this
Act, and the cost of executing necessary or proper repairs directed in writing
by the mortgagee;
(iv) in
payment of the interest falling due under the mortgage;
(v) in or
towards discharge of the principal money, if so directed in writing by the
mortgagee; and shall pay the residue, if any, of the money received by him to
the person who, but for the possession of the receiver, would have been
entitled to receive the income of which he is appointed receiver, or who is
otherwise entitled to the mortgaged property.
(9) The
provisions of sub- section (1) apply only if and as far as a contrary intention
is not expressed in the mortgage- deed; and the provisions of sub- sections (3)
to (8) inclusive may be varied or extended by the mortgage- deed, and, as so
varied or extended, shall, as far as may be, operate in like manner and with
all the like incidents, effects and consequences, as if such variations or
extensions were contained in the said sub- sections.
(10)
Application may be made, without the institution of a suit, to the Court for
its opinion, advice or direction on any present question respecting the
management or administration of the mortgaged property, other than questions of
difficulty or importance not proper in the opinion of the Court for summary
disposal. A copy of such application shall be served upon, and the hearing
thereof may be attended by, such of the persons interested in the application
as the Court may think fit. The costs of every application under this sub-
section shall be in the discretion of the Court.
(11) In
this section," the Court" means the Court which would have
jurisdiction in a suit to enforce the mortgage.]
70.
Accession to mortgaged property.- If, after the date of a mortgage, any
accession is made to the mortgaged property, the mortgagee, in the absence of a
contract to the contrary, shall, for the purposes of the security, be entitled
to such accession. Illustrations
(a) A
mortgages to B a certain field bordering on a river. The field is increased by
alluvion. For the purposes of his security, B is entitled to the increase.
(b) A
mortgages a certain plot of building land to B and afterwards erects a house on
the plot. For the purposes of his security, B is entitled to the house as well
as the plot.
71.
Renewal of mortgaged lease.- When the mortgaged property is a lease 1[ , and
the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of
a contract to the contrary, shall, for the purposes of the security, be
entitled to the new lease.
72.
Rights of mortgagee in possession.- 2[ A mortgagee] may spend such money as is
necessary-- 3[
(b) for 4[
the preservation of the mortgaged property] from destruction, forfeiture or
sale;
(c) for
supporting the mortgagor' s title to the property;
(d) for
making his own title thereto good against the mortgagor; and,
(e) when
the mortgaged property is a renewable lease- hold, for the renewal of the
lease; and may, in the absence of a contract to the contrary, add such money to
the principal money, at the rate of interest payable on the principal, and,
where no such rate is fixed, at the rate of nine per cent. per annum: 5[
Provided that the expenditure of money by the mortgagee under clause (b) or
clause (c) shall not be deemed to be necessary unless the mortgagor has been
called upon and has failed to take proper and timely steps to preserve the
property or to support the title.] Where the property is by its nature
insurable, the mortgagee may also, in the absence of a contract to the
contrary, insure and keep insured against loss or damage by fire the whole or
any part of such property; and the premiums paid for any such insurance shall
be 6[ added to the principal money with interest at the same rate as is payable
on the principal money or, where no such rate is fixed, at the rate of nine per
cent. per annum]. But the amount of such insurance shall not exceed the amount
specified in this behalf in the mortgage- deed or (if no such amount is therein
specified) two- thirds
1. The words" for a term of years" omitted by Act
20 of 1929, s. 36. 2 Subs. by s. 37, ibid., for" When, during the
continuance of the mortgage, the mortgagee takes possession of the mortgaged
property, he". 3 Cl. (a) omitted by s. 37, ibid. 4 Subs. by s. 37, ibid.,
for" its preservation". 5 Ins. by s. 37, ibid. 6 Subs. by s. 37,
ibid., for certain original words.
of the amount that would be required in case of total
destruction to reinstate the property insured. Nothing in this section shall be
deemed to authorize the mortgagee to insure when an insurance of the property
is kept up by or on behalf of the mortgagor to the amount in which the
mortgagee is hereby authorized to insure.
73. 1[
Right to proceeds of revenue sale or compensation on acquisition.-
(1) Where
the mortgaged property or any part thereof or any interest therein is sold
owing to failure to pay arrears of revenue or other charges of a public nature
or rent due in respect of such property, and such failure did not arise from
any default of the mortgagee, the mortgagee shall be entitled to claim payment
of the mortgage- money, in whole or in part, out of any surplus of the sale
proceeds remaining after payment of the arrears and of all charges and
deductions directed by law.
(2) Where
the mortgaged property or any part thereof or any interest therein is acquired
under the Land Acquisition Act, 1894 (1 of 1894 ), or any other enactment for
the time being in force providing for the compulsory acquisition of immoveable
property, the mortgagee shall be entitled to claim payment of the mortgage-
money, in whole or in part, out of the amount due to the mortgagor as
compensation.
(3) Such
claims shall prevail against all other claims except those of prior
encumbrancers, and may be enforced notwithstanding that the principal money on
the mortgage has not become due.]
74. [
Right of subsequent mortgagee to pay off prior mortgagee.] Rep. by the Transfer
of Property (Amendment) Act, 1929 (20 of 1929 ), s. 39.
75. [
Rights of mesne mortgagee against prior and subsequent mortgagees.] Rep. by s.
39, ibid.
76.
Liabilities of mortgagee in possession.- When, during the continuance of the
mortgage, the mortgagee takes possession of the mortgaged property,--
(a) he
must manage the property as a person of ordinary prudence would manage it if it
were his own;
(b) he
must use his best endeavours to collect the rents and profits thereof;
(c) he
must, in the absence of a contract to the contrary, out of the income of the
property, pay the Government revenue,
1. Subs. by Act 20 of 1929, s. 38, for the original section.
all other charges of a public nature 1[ and all rent]
accruing due in respect thereof during such possession, and any arrears of rent
in default of payment of which the property may be summarily sold;
(d) he
must, in the absence of a contract to the contrary, make such necessary repairs
of the property as he can pay for out of the rents and profits thereof after
deducting from such rents and profits the payments mentioned in clause (c) and
the interest on the principal money;
(e) he
must not commit any act which is destructive or permanently injurious to the
property;
(f) where
he has insured the whole or any part of the property against loss or damage by
fire, he must, in case of such loss or damage, apply any money which he
actually receives under the policy or so much thereof as may be necessary, in
reinstating the property, or, if the mortgagor so directs, in reduction or
discharge of the mortgage- money;
(g) he
must keep clear, full and accurate accounts of all sums received and spent by
him as mortgagee, and, at any time during the continuance of the mortgage, give
the mortgagor, at his request and cost, true copies of such accounts and of the
vouchers by which they are supported;
(h) his
receipts from the mortgaged property, or, where such property is personally
occupied by him, a fair occupation- rent in respect thereof, shall, after
deducting the expenses 1[ properly incurred for the managment of the property
and the collection of rents and profits and the other expenses] mentioned in
clauses (c) and (d), and interest thereon, be debited against him in reduction
of the amount (if any) from time to time due to him on account of interest 2[
and, so far as such receipts exceed any interest due, in reduction or discharge
of the mortgage- money; the surplus, if any, shall be paid to the mortgagor;
(i) when
the mortgagor tenders, or deposits in manner hereinafter provided, the amount
for the time being due on the mortgage, the mortgage must, notwithstanding the
1. Ins. by Act 20 of 1929, s. 40. 2 The words" on the
mortgage- money" omitted by s. 40, ibid.
provisions in the other clauses of this section, account for
his 1[ receipts from the mortgaged prope- rty from the date of the tender or
from the earliest time when he could take such amount out of Court, as the case
may be 2[ and shall not be entitled to deduct any amount therefrom on account
of any expenses incurred after such date or time in connection with the
mortgaged property]. Loss occasioned by his default.- If the mortgagee fail to
perform any of the duties imposed upon him by this section, he may, when
accounts are taken in pursuance of a decree made under this Chapter, be debited
with the loss, if any, occasioned by such failure.
77.
Receipts in lieu of interest.- Nothing in section 76, clauses (b), (d), (g) and
(h), applies to cases where there is a contract between the mortgagee and the
mortgagor that the receipts from the mortgaged property shall, so long as the
mortgagee is in possession of the property, be taken in lieu of interest on the
principal money, or in lieu of such interest and defined portions of the
principal. Priority
78.
Postponement of prior mortgagee.- Where, through the fraud, misrepresentation
or gross neglect of a prior mortgagee, another person has been induced to
advance money on the security of the mortgaged property, the prior mortgagee
shall be postponed to the subsequent mortgagee.
79.
Mortgage to secure uncertain amount when maximum is expressed.- If a mortgage
made to secure future advances, the performance of an engagement or the balance
of a running account, expresses the maximum to be secured thereby, a subsequent
mortgage of the same property shall, if made with notice of the prior mortgage,
be postponed to the prior mortgage in respect of all advances or debits not
exceeding the maximum, though made or allowed with notice of the subsequent
mortgage. Illustration A mortgages Sultanpur to his bankers, B and Co., to
secure the balance of his account with them to the extent of Rs. 10, 000, A
then mortgages Sultanpur to C, to secure Rs. 10, 000, C having notice of the
mortgage to B and Co., and C gives notice to B and Co. of the second mortgage.
At the date of the second mortgage, the balance due to B and Co. does not
exceed Rs. 5, 000. B and
1. The word" gross" omitted by Act 20 of 1929, s.
40. 2 Ins. by s. 40, ibid.
80. [
Tacking abolished.] Rep. by the Transfer of Property (Amendment) Act, 1929 (20
of 1929 ), s. 41. Marshalling and Contribution
81. 1[
Marshalling securities.- If the owner of two or more properties mortgages them
to one person and them mortgages one or more of the properties to another
person, 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 or properties not mortgaged to him, so far as the same will extend,
but not so as to prejudice the rights of the prior mortgagee or of any other
person who has for consideration acquired an interest in any of the
properties.]
82.
Contribution to mortgage- debt.- 2[ Where property subject to a mortgage
belongs to two or more persons having distinct and separate rights of ownership
therein, the different shares in or parts of such property owned by such
persons are, in the absence of a contract to the contrary, liable to contribute
reteably to the debt secured by the mortgage, and, for the purpose of
determining the rate at which each such share or part shall contribute, the
value thereof shall be deemed to be its value at the date of the mortgage after
deduction of the amount of any other mortgage or charge to which it may have
been subject on that date.] Where, of two properties belonging to the same
owner, one is mortgaged to secure one debt and then both are mortgaged to
secure another debt, and the former debt is paid out of the former property,
each property is, in the absence of a contract to the contrary, liable to
contribute rateably to the latter debt after deducting the amount of the former
debt from the value of the property out of which it has been paid. Nothing in
this section applies to a property liable under section 81 to the claim of the
3[ subsequent] mortgagee. Deposit in Court
83. Power
to deposit in Court money due on mortgage.- At any time after the principal
money 4[ payable in respect of any mortgage has become due] and before a suit
for redemption of
1. Subs. by Act 20 of 1929, s. 42, for the original section.
2 Subs. by s. 43, ibid., for the original paragraph. 3 Subs. by s. 43, ibid.,
for" second". 4 Subs. by s. 44, ibid., for" has become
payable".
the mortgaged property is barred, the mortgagor, or any
other person entitled to institute such suit, may deposit, in any Court in
which he might have instituted such suit, to the account of the mortgagee, the
amount remaining due on the mortgage. Right to money deposited by mortgagor.-
The Court shall thereupon cause written notice of the deposit to be served on
the mortgagee, and the mortgagee may, on presenting a petition (verified in
manner prescribed by law 1[ for the verification of plaints) stating the amount
then due on the mortgage, and his willingness to accept the money so deposited
in full discharge of such amount, and on depositing in the same Court the
mortgage- deed 2[ and all documents in his possession or power relating to the
mortgaged property], apply for and receive the money, and the mortgage- deed 3[
and all such other documents] so deposited shall be delivered to the mortgagor
or such other person as aforesaid. 3[ Where the mortgagee is in possession of
the mortgaged property, the Court shall, before paying to him the amount so
deposited, direct him to deliver possession thereof to the mortgagor and at the
cost of the mortgagor either to re- transfer the mortgaged property to the
mortgagor or to such third person as the mortgagor may direct or to execute and
(where the mortgage has been effected by a registered instrument) have
registered an acknowledgment in writing that any right in derogation of the
mortgagor' s interest transferred to the mortgagee has been extinguished.]
84.
Cessation of interest.- When the mortgagor or such other person as aforesaid
has tendered or deposited in Court under section 83 the amount remaining due on
the mortgage, interest on the principal money shall cease from the date of the
tender or 4[ in the case of a deposit, where no previous tender of such amount
has been made] as soon as the mortgagor or such other person as aforesaid has
done all that has to be done by him to enable the mortgagee to take such amount
out of Court, 5[ and the notice required by section 83 has been served on the
mortgagee: Provided that, where the mortgagor has deposited such amount without
having made a previous tender thereof and has subsequently withdrawn the same
or any part thereof, interest on the principal money shall be payable from the
date of such withdrawal.]
1. See the Code of Civil Procedure, 1908 (Act 5 of 1908 ),
Sch. I, Order VI, rule 15. 2 Subs. by Act 20 of 1929, s. 44, for" if then
in his possession or power". 3 Ins. by s. 44, ibid. 4 Ins. by s. 45, ibid.
5 Subs. by s. 45, ibid., for" as the case may be".
Nothing in this section or in section 83 shall be deemed to
deprive the mortgagee of his right to interest when there exists a contract
that he shall be entitled to reasonable notice before payment or tender of the
mortgage- money 1[ and such notice has not been given before the making of the
tender or deposit, as the case may be]. 2[ Suits for Foreclosure,
85. [
Parties to suits for foreclosure, sale and redemption.] Rep. by the Code of
Civil Procedure, 1908 (Act 5 of 1908 ), s. 156 and Sch. V. 2[ Foreclosure and
91. 3[
Persons who may sue for redemption.- Besides the mortgagor, any of the
following persons may redeem, or institute a suit for redemption of, the
mortgaged property, namely:--
(a) any
person (other than the mortgagee of the interest sought to be redeemed) who has
any interest in, or charge upon, the property mortgaged or in or upon the right
to redeem the same;
(b) any
surety for the payment of the mortgage- debt or any part thereof; or
(c) any
creditor of the mortgagor who has in a suit for the administration of his
estate obtained a decree for sale of the mortgaged property.]
92. 4[
Subrogation.- Any of the persons referred to in section 91 (other than the
mortgagor) and any co- mortgagor shall, on redeeming property subject to the
mortgage, have, so far as regards redemption, foreclosure or sale of such property,
the same rights as the mortgagee whose mortgage he redeems may have against the
mortgagor or any other mortgagee.
1. Added by Act 20 of 1929, s. 45. 2 For the repealed
provisions, as re- enacted, see the Code of Civil Procedure, 1908 (Act 5 of
1908 ), Sch. I, Order XXXIV. 3 Subs. by Act 20 of 1929, s. 46, for the original
section. 4 Ins. by s. 47, ibid. Original ss. 92 to 94 were rep. by Act 5 of
1908, s. 156 and Sch. V.
The right conferred by this section is called the right of
subrogation, and a person acquiring the same is said to be subrogated to the
rights of the mortgagee whose mortgage he redeems. A person who has advanced to
a mortgagor money with which the mortgage has been redeemed shall be subrogated
to the rights of the mortgagee whose mortgage has been redeemed, if the
mortgagor has by a registered instrument agreed that such persons shall be so
subrogated. Nothing in this section shall be deemed to confer a right of
subrogation on any person unless the mortgage in respect of which the right is
claimed has been redeemed in full.
93.
Prohibition of tacking.- No mortgagee paying off a prior mortgage, whether with
or without notice of an intermediate mortgage, shall thereby acquire any priority
in respect of his original security; and, except in the case provided for by
section 79, no mortgagee making a subsequent advance to the mortgagor, whether
with or without notice of an intermediate mortgage, shall thereby acquire any
priority in respect of his security for such subsequent advance.
94. Rights
of mesne mortgagee.- Where a property is mortgaged for successive debts to
successive mortgagees, a mesne mortgagee has the same rights against mortgagees
posterior to himself as he has against the mortgagor.]
95. 1[
Right of redeeming co- mortgagor to expenses.- Where one of several mortgagors
redeems the mortgaged property, he shall, in enforcing his right of subrogation
under section 92 against his co- mortgagors, be entitled to add to the
mortgage- money recoverable from them such proportion of the expenses properly
incurred in such redemption as is attributable to their share in the property.
96.
Mortgage by deposit of title- deeds.- The provisions hereinbefore contained
which apply to a simple mortgage shall, so far as may be, apply to a mortgage
by deposit of title- deeds.]
97. 2[ [
Application of proceeds.] Rep. by the Code of Civil Procedure, 1908 (Act 5 of
1908 ), s. 156 and Sch. V.
1. Subs. by Act 20 of 1929, s. 48, for the original s. 95.
Original s. 96 was rep. by Act 5 of 1908, s. 156 and Sch. V. 2 For the repealed
provisions as re- enacted, see the Code of Civil Procedure, 1908 (Act 5 of 1908
), Sch. I, Order XXXIV, rules 12 and 13.
Anomalous Mortgages
98. Rights
and liabilities of parties to anomalous mortgages.- In the case of 1[ an
anomalous mortgage] the rights and liabilities of the parties shall be
determined by their contract as evidenced in the mortgage- deed, and, so, far
as such contract does not extend, by local usage.
99. 2[ [
Attachment of mortgaged property.] Rep. by the Code of Civil Procedure, 1908
(Act 5 of 1908 ), s. 156 and Sch. V. Charges
100.
Charges.- 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 3[ which
apply to a simple mortgage shall, so far as may be, apply to such charge].
Nothing in this section applies to the charge of a trustee on the trust-
property for expenses properly incurred in the execution of his trust, 4[ and,
save as otherwise expressly provided by any law for the time being in force, no
charge shall be enforced against any property in the hands of a person to whom
such property has been transferred for consideration and without notice of the
charge].
101. 5[
No merger in case of subsequent encumbrance.- Any mortgagee of, or person
having a charge upon, immoveable property, or any transferee from such
mortgagee or charge holder, may purchase or otherwise acquire the rights in the
property of the mortgagor or owner, as the case may be, without thereby causing
the mortgage or charge to be merged as between himself and any subsequent
mortgagee of, or person having a subsequent charge upon, the same property; and
no such subsequent mortgagee or charge- holder shall be entitled to foreclose
or sell such property
1. Subs. by Act 20 of 1929, s. 49, for" a mortgage, not
being a simple mortgage, a mortgage by conditional sale, an usufructuary
mortgage or an English mortgage or a combination of the first and third, or the
second and third, of such forms". 2 For the repealed provisions as re-
enacted, see the Code of Civil Procedure, 1908 (Act 5 of 1908 ), Sch. I, Order
XXXIV, rule 14. 3 Subs. by Act 20 of 1929, s. 50, for" as to a mortgagor
shall, so far as may be, apply to the owner of such property, and the
provisions of ss. 81 and 82 shall, so far as may be, apply to the person having
such charge". 4 Added by s. 50, ibid. 5 Subs. by s. 51, ibid., for the
original section.
without redeeming the prior mortgage or charge, or otherwise
than subject thereto.] Notice and Tender
102.
Service or tender on or to agent.- Where the person on or to whom any notice or
tender is to be served or made under this Chapter does not reside in the
district in which the mortgaged property or some part thereof is situate,
service or tender on or to an agent holding a general power- of- attorney from
such person or otherwise duly authorized to accept such service or tender shall
be deemed sufficient. 1[ Where no person or agent on whom such notice should be
served can be found or is known] to the person required to serve the notice,
the latter person may apply to any Court in which a suit might be brought for
redemption of the mortgaged property, and such Court shall direct in what
manner such notice shall be served, and any notice served in compliance with
such direction shall be deemed sufficient: 2[ Provided that, in the case of a
notice required by section 83, in the case of a deposit, the application shall
be made to the Court in which the deposit has been made.] 3[ Where no person or
agent to whom such tender should be made can be found or is known] to the
person desiring to make the tender, the latter person may deposit 4[ in any
Court in which a suit might be brought for redemption of the mortgaged
property] the amount sought to be tendered, and such deposit shall have the
effect of a tender of such amount.
103.
Notice, etc., to or by person incompetent to contract.- Where, under the
provisions of this Chapter, a notice is to be served on or by, or a tender or
deposit made or accepted or taken out of Court by, any person incompetent to
contact, such notice may be served 5[ on or by], or tender or deposit made,
accepted or taken by, the legal curator of the property of such person; but
where there is no such curator, and it is requisite or desirable in the
interests of such person that a notice should be served or a tender or deposit
made under the provisions of this Chapter, application
1. Subs. by Act 20 of 1929, s. 52, for" Where the
person or agent on whom such notice should be served cannot be found in the
said district, or is unknown". 2 Ins. by s. 52, ibid. 3 Subs. by s. 52,
ibid., for" Where the person or agent to whom such tender should be made
cannot be found within the said district, or is unknown". 4 Subs. by s.
52, ibid., for" in such Court as last aforesaid". 5 Ins. by s. 53,
ibid.
may be made to any Court in which a suit might be brought
for the redemption of the mortgage to appoint a guardian ad litem for the
purpose of serving or receiving service of such notice, or making or accepting
such tender, or making or taking out of Court such deposit, and for the
performance of all consequential acts which could or ought to be done by such
person if he were competent to contract 1[ ; and the provisions of 2[ Order
XXXII in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908 )]
shall, so far as may be, apply to such application and to the parties thereto
and to the guardian appointed thereunder.
104.
Power to make rules.- The High Court may, from time to time, make rules
consistent with this Act for carrying out, in itself and in the Courts of Civil
Judicature subject to its superintendence, the provisions contained in this
Chapter. CHAPTER V OF LEASES OF IMMOVEABLE PROPERTY CHAPTER V OF LEASES OF IMMOVEABLE
PROPERTY
105. Lease
defined.- A lease of immoveable 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. Lessor, lessee, premium and rent defined.- The
transferor is called the lessor, the transferee is called the lessee, the price
is called the premium, and the money, share, service or other thing to be so
rendered is called the rent.
106.
Duration of certain leases in absence of written contract or local usage.- In
the absence of a contract or local law or usage to the contrary, a lease of
immoveable property for agricultural or manufacturing purposes shall be deemed
to be a lease from year to year, terminable, on the part of either lessor or
lessee, by six months' notice expiring with the end of a year of the tenancy;
and a lease of immoveable property for any other purpose shall be deemed to be
a lease from month to month, terminable, on the part of either lessor or
lessee, by fifteen days' notice expiring with the end of a month of the
tenancy.
1. As to persons competent to contract, see ss. 11 and 12 of
the Indian Contract Act, 1872 (9 of 1872 ). 2 Subs. by Act 20 of 1929, s. 53,
for" Chapter XXXI of the Code of Civil Procedure".
Every notice under this section must be in writing, signed
by or on behalf of the person giving it, and 1[ either be sent by post to the
party who is intended to be bound by it or be tendered or delivered personally
to such party], or to one of his family or servants at his residence, or (if
such tender or delivery is not practicable) affixed to a conspicuous part of
the property.
107. 2[
Leases how made.- A lease of immoveable property from year to year, or for any
term exceeding one year, or reserving a yearly rent, can be made only by a
registered instrument. 3[ All other leases of immoveable property may be made
either by a registered instrument or by oral agreement accompanied by delivery
of possession. 4[ Where a lease of immoveable property is made by a registered
instrument, such instrument or, where there are more instruments than one, each
such instrument shall be executed by both the lessor and the lessee:] Provided
that the State Government may, 5[ from time to time, by notification in the
Official Gazette, direct that leases of immoveable property, other than leases
from year to year, or for any term exceeding one year, or reserving a yearly rent,
or any class of such leases, may be made by unregistered instrument or by oral
agreement without delivery of possession.]
108.
Rights and liabilities of lessor and lessee.- In the absence of a contract or
local usage to the contrary, the lessor and the lessee of immoveable property,
as against one another, respectively, possess the rights and are subject to the
liabilities mentioned in the rules next following, or such of them as are
applicable to the property leased:--
(A) Rights
and Liabilities of the Lessor
(a) The
lessor is bound to disclose to the lessee any material defect in the property,
with reference to its intended use, of which the former
1. Subs. by Act 20 of 1929, s. 54, for" tendered or
delivered either personally to the party who is intended to be bound by
it". 2 As to limitation to the territorial operation of s. 107, see s. 1,
supra. S. 107 extends to every cantonment-- see s. 287 of the Cantonments Act,
1924 (2 of 1924 ). 3 Subs. by Act 6 of 1904, s. 5 for the original paragraph. 4
Ins. by Act 20 of 1929, s. 55. 5 The words" with the previous sanction of
the G. G. in C." omitted by the A. O. 1937.
is and the latter is not aware, and which the latter could
not with ordinary care discover:
(b) the
lessor is bound on the lessee' s request to put him in possession of the
property:
(c) the
lessor shall be deemed to contract with the lessee that, if the latter pays the
rent reserved by the lease and performs the contracts binding on the lessee, he
may hold the property during the time limited by the lease without
interruption. The benefit of such contract shall be annexed to and go with the
lessee' s interest as such, and may be enforced by every person in whom that
interest is for the whole or any part thereof from time to time vested.
(B)
Rights and Liabilities of the Lessee
(d) If
during the continuance of the lease any accession is made to the property, such
accession (subject to the law relating to alluvion for the time being in force)
shall be deemed to be comprised in the lease:
(e) if by
fire, tempest or flood, or violence of an army or of a mob, or other
irresistible force, any material part of the property be wholly destroyed or
rendered substantially and permanently unfit for the purposes for which it was
let, the lease shall, at the option of the lessee, be void: Provided that, if
the injury be occasioned by the wrongful act or default of the lessee, he shall
not be entitled to avail himself of the benefit of this provision:
(f) if
the lessor neglects to make, within a reasonable time after notice, any repairs
which he is bound to make to the property, the lessee may make the same
himself, and deduct the expense of such repairs with interest from the rent, or
otherwise recover it from the lessor:
(g) if
the lessor neglects to make any payment which he is bound to make, and which,
if not made by him, is recoverable from the lessee or against the property, the
lessee may make such payment himself, and deduct it with interest from the
rent, or otherwise recover it from the lessor:
(h) the
lessee may 1[ even after the determination of the lease] remove, at any time 2[
whilst he is in possession of the property leased
1. Ins. by Act 20 of 1929, s. 56. 2 Subs. by s. 56, ibid.,
for" during the continuance of the lease".
but not afterwards] all things which he has attached to the
earth: provided he leaves the property in the state in which he received it:
(i) when a
lease of uncertain duration determines by any means except the fault of the
lessee, he or his legal representative is entitled to all the crops planted or
sown by the lessee and growing upon the property when the lease determines, and
to free ingress and egress to gather and carry them:
(j) the
lessee may transfer absolutely or by way of mortgage or sub- lease the whole or
any part of his interest in the property, and any transferee of such interest
or part may again transfer it. The lessee shall not, by reason only of such
transfer, cease to be subject to any of the liabilities attaching to the lease:
nothing in this clause shall be deemed to authorize a tenant having an un-
transferable right of occupancy, the farmer of an estate in respect of which
default has been made in paying revenue, or the lessee of an estate under the
management of a Court of Wards, to assign his interest as such tenant, farmer
or lessee:
(k) the
lessee is bound to disclose to the lessor any fact as to the nature or extent
of the interest which the lessee is about to take, of which the lessee is, and
the lessor is not, aware, and which materially increases the value of such
interest:
(l) the
lessee is bound to pay or tender, at the proper time and place, the premium or
rent to the lessor or his agent in this behalf:
(m) the
lessee is bound to keep, and on the termination of the lease to restore, the
property in as good condition as it was in at the time when he was put in
possession, subject only to the changes caused by reasonable wear and tear or
irresistible force, and to allow the lessor and his agents, at all reasonable
times during the term, to enter upon the property and inspect the condition
thereof and give or leave notice of any defect in such condition; and, when
such defect has been caused by any act or default on the part of the lessee,
his servants or agents, he is bound to make it good within three months after
such notice has been given or left:
(n) if the
lessee becomes aware of any proceeding to recover the property or any part
thereof, or of any encroachment made upon, or any interference with, the
lessor' s rights concerning such property, he is bound to give, with reasonable
diligence, notice thereof to the lessor:
(o) the
lessee may use the property and its products (if any) as a person of ordinary
prudence would use them if they were his own;
but he must not use, or permit another to use, the property
for a purpose other than that for which it was leased, or fell 1[ or sell]
timber, pull down or damage buildings 1[ belonging to the lessor, or] work
mines or quarries not open when the lease was granted, or commit any other act
which is destructive or permanently injurious thereto:
(p) he
must not, without the lessor' s consent, erect on the property any permanent
structure, except for agricultural purposes:
(q) on the
determination of the lease, the lessee is bound to put the lessor into
possession of the property.
109.
Rights of lessor' s transferee.- If the lessor transfers the property leased,
or any part thereof, or any part of his interest therein, the transferee, in
the absence of a contract to the contrary, shall possess all the rights, and,
if the lessee so elects, be subject to all the liabilities of the lessor as to
the property or part transferred so long as he is the owner of it; but the lessor
shall not, by reason only of such transfer, cease to be subject to any of the
liabilities imposed upon him by the lease, unless the lessee elects to treat
the transferee as the person liable to him: Provided that the transferee is not
entitled to arrears of rent due before the transfer, and that, if the lessee,
not having reason to believe that such transfer has been made, pays rent to the
lessor, the lessee shall not be liable to pay such rent over again to the
transferee. The lessor, the transferee and the lessee may determine what
proportion of the premium or rent reserved by the lease is payable in respect
of the part so transferred, and, in case they disagree, such determination may
be made by any Court having jurisdiction to entertain a suit for the possession
of the property leased.
110.
Exclusion of day on which term commences.- Where the time limited by a lease of
immoveable property is expressed as commencing from a particular day, in
computing that time such day shall be excluded. Where no day of commencement is
named, the time so limited begins from the making of the lease. Duration of
lease for a year.- Where the time so limited is a year or a number of years, in
the absence of an express agreement to the contrary, the lease shall last
during the whole anniversary of the day from which such time commences.
1. Ins. by Act 20 of 1929, s. 56.
Option to determine lease.- Where the time so limited is
expressed to be terminable before its expiration, and the lease omits to
mention at whose option it is so terminable, the lessee, and not the lessor,
shall have such option.
111.
Determination of lease.- A lease of immoveable property determines--
(a) by
efflux of the time limited thereby:
(b) where
such time is limited conditionally on the happening of some event-- by the
happening of such event:
(c) where
the interest of the lessor in the property terminates on, or his power to
dispose of the same extends only to, the happening of any event-- by the
happening of such event:
(d) in
case the interests of the lessee and the lessor in the whole of the property
become vested at the same time in one person in the same right:
(e) by
express surrender; that is to say, in case the lessee yields up his interest
under the lease to the lessor, by mutual agreement between them:
(f) by
implied surrender:
(g) by
forfeiture; that is to say, (1) in case the lessee breaks an express condition
which provides that, on breach thereof, the lessor may re- enter 1[ ; or (2) in
case the lessee renounces his character as such by setting up a title in a
third person or by claiming title in himself; 2[ or (3) the lessee is
adjudicated an insolvent and the lease provides that the lessor may re- enter
on the happening of such event]; and in 3[ any of these cases] the lessor or
his transferee 4[ gives notice in writing to the lessee of] his intention to
determine the lease:
(h) on
the expiration of a notice to determine the lease, or to quit, or of intention
to quit, the property leased, duly given by one party to the other.
Illustration to clause (f) A lessee accepts from his lessor a new lease of the
property leased, to take effect during the continuance of the existing lease.
This is an implied surrender of the former lease, and such lease determines
thereupon.
1. The words" or the lease shall become void"
omitted by Act 20 of 1929, s. 57. 2 Ins. by s. 57, ibid. 3 Subs. by s. 57,
ibid., for" either case". 4 Subs. by s. 57, ibid., for" does
some act showing".
112.
Waiver of forfeiture.- A forfeiture under section 111, clause (g), is waived by
acceptance of rent which has become due since the forfeiture, or by distress
for such rent, or by any other act on the part of the lessor showing an
intention to treat the lease as subsisting: Provided that the lessor is aware
that the forfeiture has been incurred: Provided also that, where rent is
accepted after the institution of a suit to eject the lessee on the ground of
forfeiture, such acceptance is not a waiver.
113.
Waiver of notice to quit.- A notice given under section 111, clause (h), is
waived, with the express or implied consent of the person to whom it is given,
by any act on the part of the person giving it showing an intention to treat
the lease as subsisting. Illustrations
(a) A, the
lessor, gives B, the lessee, notice to quit the property leased. The notice
expires. B tenders, and A accepts, rent which has become due in respect of the
property since the expiration of the notice. The notice is waived.
(b) A, the
lessor, gives B, the lessee, notice to quit the property leased. The notice
expires, and B remains in possession. A gives to B as lessee a second notice to
quit. The first notice is waived.
114.
Relief against forfeiture for non- payment of rent.- Where a lease of
immoveable property has determined by forfeiture for non- payment of rent, and
the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee
pays or tenders to the lessor the rent in arrear, together with interest
thereon and his full costs of the suit, or gives such security as the Court
thinks sufficient for making such payment within fifteen days, the Court may,
in lieu of making a decree for ejectment, pass an order relieving the lessee
against the forfeiture; and thereupon the lessee shall hold the property leased
as if the forfeiture had not occurred.
114A. 1[
Relief against forfeiture in certain other cases.- Where a lease of immoveable
property has determined by forfeiture for a breach of an express condition
which provides that on breach thereof the lessor may re- enter, no suit for
ejectment shall lie unless and until the lessor has served on the lessee a
notice in writing--
(a)
specifying the particular breach complained of; and
(b) if the
breach is capable of remedy, requiring the lessee to remedy the breach;
1. Ins. by Act 20 of 1929, s. 58.
and the lessee fails, within a reasonable time from the date
of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against the
assigning, under- letting, parting with the possession, or disposing, of the
property leased, or to an express condition relating to forfeiture in case of
non- payment of rent.]
115.
Effect of surrender and forfeiture on under- leases.- The surrender, express or
implied, of a lease of immoveable property does not prejudice an under- lease
of the property or any part thereof previously granted by the lessee, on terms
and conditions substantially the same (except as regards the amount of rent) as
those of the original lease; but, unless the surrender is made for the purpose
of obtaining a new lease, the rent payable by, and the contracts binding on,
the under- lessee shall be respectively payable to and enforceable by the
lessor. The forfeiture of such a lease annuls all such under- leases, except
where such forfeiture has been procured by the lessor in fraud of the under-
lessees, or relief against the forfeiture is granted under section 114.
116.
Effect of holding over.- If a lessee or under- lessee of property remains in
possession thereof after the determination of the lease granted to the lessee,
and the lessor or his legal representative accepts rent from the lessee or
under- lessee, or otherwise assents to his continuing in possession, the lease
is, in the absence of an agreement to the contrary, renewed from year to year,
or from month to month, according to the purpose for which the property is
leased, as specified in section 106. Illustrations
(a) A lets
a house to B for five years. B underlets the house to C at a monthly rent of
Rs. 100. The five years expire, but C continues in possession of the house and
pays the rent to A. C' s lease is renewed from month to month.
(b) A lets
a farm to B for the life of C. C dies, but B continues in possession with A' s
assent. B' s lease is renewed from year to year.
117.
Exemption of leases for agricultural purposes.- None of the provisions of this
Chapter apply to leases for agricultural purposes, except in so far as the
State Government 1[ may by notification published in the Official Gazette
declare all or any of such provisions to be so applicable 2[ in the case of all
1. The words" with the previous sanction of the G. G.
in C." omitted by Act 38 of 1920, s. 2 and Sch. I. 2 Ins. by Act 6 of
1904, s. 6.
or any of such leases], together with, or subject to, those
of the local law, if any, for the time being in force. Such notification shall
not take effect until the expiry of six months from the date of its
publication. CHAPTER VI OF EXCHANGES CHAPTER VI OF EXCHANGES
118.
" Exchange" defined.- 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.
119. 1[
Right of party deprived of thing received in exchange.- If any party to an
exchange or any person claiming through or under such party is by reason of any
defect in the title of the other party deprived of the thing or any part of the
thing received by him in exchange, then, unless a contrary intention appears
from the terms of the exchange, such other party is liable to him or any person
claiming through or under him for loss caused thereby, or at the option of the
person so deprived, for the return of the thing transferred, if still in the
possession of such other party or his legal representative or a transferee from
him without consideration.]
120.
Rights and liabilities of parties.- Save as otherwise provided in this Chapter,
each party has the rights and is subject to the liabilities of a seller as to
that which he gives, and has the rights and is subject to the liabilities of a
buyer as to that which he takes.
121.
Exchange of money.- On an exchange of money, each party thereby warrants the
genuineness of the money given by him. CHAPTER VII OF GIFTS CHAPTER VII OF
GIFTS
122.
" Gift" defined.-" Gift" is the transfer of certain
existing moveable or immoveable 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.
1. Subs. by Act 20 of 1929, s. 59, for the original section.
Acceptance when to be made.- Such 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.
123. 1[
Transfer how effected.- For the purpose of making a gift of immoveable
property, the transfer must be effected by a registered instrument signed by or
on behalf of the donor, and attested by at least two witnesses. For the purpose
of making a gift of moveable property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery. Such delivery may be
made in the same way as goods sold may be delivered.
124. Gift
of existing and future property.- A gift comprising both existing and future
property is void as to the latter.
125. Gift
to several, of whom one does not accept.- A gift of a thing to two or more
donees, of whom one does not accept it, is void as to the interest which he
would have taken had he accepted.
126. When
gift may be suspended or revoked.- The donor and done may agree that on the
happening of any specified event which does not depend on the will of the donor
a gift shall be suspended or revoked; but a gift which the parties agree shall
be revocable wholly or in part, at the mere will of the donor, is void wholly
or in part, as the case may be. A gift may also be revoked in any of the cases
(save want or failure of consideration) in which, if it were a contract, it might
be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in
this section shall be deemed to affect the rights of transferees for
consideration without notice. Illustrations
(a) A gives
a field to B, reserving to himself, with B' s assent, the right to take back
the field in case B and his descendants die before A. B dies without
descendants in A' s lifetime. A may take back the field.
(b) A
gives a lakh of rupees to B, reserving to himself, with B' s assent, the right
to take back at pleasure Rs. 10, 000 out of the lakh. The gift holds good as to
Rs. 90, 000, but is void as to Rs. 10, 000 which continue to belong to A.
1. As to limitation to the territorial operation of s. 123,
see s. 1, supra. S. 123 extends to every cantonment-- see s. 287 of the
Cantonments Act, 1924 (2 of 1924 ).
127.
Onerous gifts.- 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. Where a gift is in the form of two or more separate and independent
transfers to the same person of several things, the donee is at liberty to
accept one of them and refuse the others, although the former may be beneficial
and the latter onerous. Onerous gift to disqualified person.- A donee not
competent to contract and accepting property burdened by any obligation is not
bound by his acceptance. But if, after becoming competent to contract and being
aware of the obligation, he retains the property given, he becomes so bound.
Illustrations
(a) A has
shares in X, a prosperous joint stock company, and also shares in Y, a joint
stock company in difficulties. Heavy calls are expected in respect of the
shares in Y. A gives B all his shares in joint stock companies. B refuses to
accept the shares in Y. He cannot take the shares in X.
(b) A,
having a lease for a term of years of a house at a rent which he and his
representatives are bound to pay during the term, and which is more than the
house can be let for, gives to B the lease, and also, as a separate and
independent transaction, a sum of money. B refuses to accept the lease. He does
not by this refusal forfeit the money.
128.
Universal donee.- Subject to the provisions of section 127, where a gift
consists of the donor' s whole property, the donee is personally liable for all
the debts due by 1[ and liabilities of] the donor at the time of the gift to
the extent of the property comprised therein.
129.
Saving of donations mortis causa and Muhammadan law.- Nothing in this Chapter
relates to gifts of moveable property made in contemplation of death, or shall
be deemed to affect any rule of Muhammadan law 2[ . CHAPTER VIII OF TRANSFERS
OF ACTIONABLE CLAIMS 3[ CHAPTER VIII OF TRANSFERS OF ACTIONABLE CLAIMS
130.
Transfer of actionable claim.-
(1) The
transfer of an actionable claim 4[ whether with or without consideration] shall
be effected only by the execution of an
1. Ins. by Act 20 of 1929, s. 60. 2 The words and
figures" or, save as provided by section 123, any rule of Hindu or
Buddhist law" omitted by s. 61, ibid. 3 Subs. by Act 2 of 1900, s. 4, for
the original Chapter. 4 Ins. by Act 20 of 1929, s. 62.
instrument in writing signed by the transferor or his duly
authorized agent, 1[ shall be complete and effectual upon the execution of such
instrument, and thereupon all the rights and remedies of the transferor,
whether by way of damages or otherwise, shall vest in the transferee, whether
such notice of the transfer as is hereinafter provided be given or not: Provided
that every dealing with the debt or other actionable claim by the debtor or
other person from or against whom the transferor would, but for such instrument
of transfer as aforesaid, have been entitled to recover or enforce such debt or
other actionable claim, shall (save where the debtor or other person is a party
to the transfer or has received express notice thereof as hereinafter provided)
be valid as against such transfer.
(2) The
transferee of an actionable claim may, upon the execution of such instrument of
transfer as aforesaid, sue or institute proceedings for the same in his own
name without obtaining the transferor' s consent to such suit or proceedings
and without making him a party thereto. Exception.-- Nothing in this section
applies to the transfer of a marine or fire policy of insurance 2[ or affects
the provisions of section 38 of the Insurance Act, 1938 (4 of 1938 )].
Illustrations
(i) A owes
money to B, who transfers the debt to C. B then demands the debt from A, who,
not having received notice of the transfer, as prescribed in section 131, pays
B. The payment is valid, and C cannot sue A for the debt.
(ii) A
effects a policy on his own life with an Insurance Company and assigns it to a
Bank for securing the payment of an existing or future debt. If A dies, the
Bank is entitled to receive the amount of the policy and to sue on it without
the concurrence of A' s executor, subject to the proviso in sub- section (1) of
section 130 and to the provisions of section 132.
130A. 3[
[ Transfer of policy of marine insurance.] Rep. by the Marine Insurance Act,
1963 (11 of 1963 ), s. 92 (w. e. f. 1- 8- 1963 ).
131.
Notice to be in writing, signed.- Every notice of transfer of an actionable
claim shall be in writing, signed by the transferor or his agent duly
authorized in this behalf, or, in case the transferor refuses to sign, by the
transferee or his agent, and shall state the name and address of the
transferee.
1. The words and figures" and notwithstanding anything
contained in s. 123" ins. by Act 38 of 1925, s. 2, omitted by Act 20 of
1929, s. 62. 2 Added by Act 4 of 1938, s. 121 (with effect from 1- 7- 1939 ). 3
Ins. by Act 6 of 1944, s. 2.
132.
Liability of transferee of actionable claim.- The transferee of an actionable
claim shall take it subject to all the liabilities and equities to which the
transferor was subject in respect thereof at the date of the transfer.
Illustrations
(i) A
transfers to C a debt due to him by B, a being then indebted to B. C sues B for
the debt due by B to A. In such suit B is entitled to set off the debt due by A
to him; although C was unaware of it at the date of such transfer.
(ii) A
executed a bond in favour of B under circumstances entitling the former to have
it delivered up and cancelled. B assigns the bond to C for value and without
notice of such circumstances. C cannot enforce the bond against A.
133.
Warranty of solvency of debtor.- Where the transferor of a debt warrants the
solvency of the debtor, the warranty, in the absence of a contract to the
contrary, applies only to his solvency at the time of the transfer, and is
limited, where the transfer is made for consideration, to the amount or value
of such consideration.
134.
Mortgaged debt.- Where a debt is transferred for the purpose of securing an
existing or future debt, the debt so transferred, if received by the transferor
or recovered by the transferee, is applicable, first, in payment of the costs
of such recovery: secondly, in or towards satisfaction of the amount for the
time being secured by the transfer; and the residue, if any, belongs to the
transferor or other person entitled to receive the same.
135. 1[
Assignment of rights under policy of insurance against fire.- Every assignee,
by endorsement or other writing, of a policy of insurance against fire, in whom
the property in the subject insured shall be absolutely vested at the date of
the assignment, shall have transferred and vested in him all rights of suit as
if the contract contained in the policy had been made with himself.]
135A. 2[ [
Assignment of rights under policy of marine insurance.] Rep. by the Marine
Insurance Act, 1963 (11 of 1963 ), s. 92 (w. e. f. 1- 8- 1963 ).
136.
Incapacity of officers connected with Courts of Justice.- No Judge, legal
practitioner or officer connected with any Court of Justice shall buy or
traffic in, or stipulate for, or agree to receive any share of, or interest in,
any actionable claim, and no Court of Justice shall enforce, at his instance,
or at the instance of any
1. Subs. by Act 6 of 1944, s. 3, for the original section. 2
Ins. by s. 4, ibid.
person claiming by or through him, any actionable claim so
dealt with by him as aforesaid.
137.
Saving of negotiable instruments, etc.- Nothing in the foregoing sections of
this Chapter applies to stocks, shares or debentures, or to instruments which
are for the time being, by law or custom, negotiable, or to any mercantile
document of title to goods. Explanation.-- The expression" mercantile
document of title to goods" includes a bill of lading, dock- warrant,
warehousekeeper' s certificate, railway receipt, warrant or order for the
delivery of goods, and any other document used in the ordinary course of
business as proof of the possession or control of goods, or authorizing or
purporting to authorize, either by endorsement or by delivery, the possessor of
the document to transfer or receive goods thereby represented.
SCHEDULE I
(a)
STATUTES THE SCHEDULE
(a)
STATUTES
999999. Year and chapter Subject Extent of repeal 27 Hen.
VIII, c. 10. Uses.... The whole.
13. Eliz., c. 5.. Fraudulent conveyances. The whole.
27. Eliz., c. 4.. Fraudulent conveyances. The whole.
4. Wm. and Mary, c. 16 Clandestine mortgages. The whole. (b)
ACTS OF THE GOVERNOR GENERAL IN COUNCIL Number and year Subject Extent of
repeal IX of 1842 ... Lease and release.. The whole. XXXI of 1854 .. Modes of
conveying land Section 17. XI of 1855 ... Mesne profits and improve- Section 1;
in the ments. title, the words" to mesne profits and", and in the
preamble" to limit the liability for mesne profits and". XXVII of
1866 .. Indian Trustee Act.. Section 31. IV of 1872 ...
