TRANSFER OF PROPERTY ACT, 1882 [INDIA
CHAPTER I
PRELIMINARY |
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1.
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Short
title |
2.
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Repeal
of Acts – Saving of certain enactments, incidents, rights, liabilities, etc. |
3.
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4.
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CHAPTER I
TRANSFER OF PROPERTY BY ACT OF PARTIES |
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5.
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6.
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7.
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8.
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9.
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10.
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11.
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12.
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13.
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14.
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15.
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16.
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17.
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18.
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19.
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Vested
interest |
20.
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21.
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22.
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23.
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24.
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25.
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26.
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27.
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28.
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29.
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Fulfillment
of condition subsequent |
30.
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31.
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32.
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33.
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34.
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ELECTION
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35.
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APPORTIONMENT
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36.
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37.
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38.
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39.
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40.
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41.
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42.
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43.
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44.
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45.
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46.
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47.
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Transfer
by co-owners of share in common property |
48.
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49.
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50.
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Rent
bona fide paid to holder under defective title |
51.
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52.
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53.
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53A.
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CHAPTER III
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54.
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55.
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56.
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DISCHARGE OF ENCUMBRANCES ON
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57.
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Chapter - IV
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58.
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59.
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59A.
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RIGHTS AND LIABILITIES OF MORTGAGOR
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60.
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60A.
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60B.
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61.
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62.
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63.
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63A.
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64.
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65.
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65A.
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66.
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RIGHTS AND LIABILITIES OF MORTGAGEE
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MARSHALLING AND CONTRIBUTION
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DEPOSIT IN COURT
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SUITS FOR FORECLOSURE,
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ANOMALOUS MORTGAGES
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ATTACHMENT OF MORTGAGED PROPERTY
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CHARGES
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NOTICE AND TENDER
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CHAPTER V
OF LEASES OF IMMOVABLE PROPERTY |
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Effect
of surrender and forfeiture on under-leases
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CHAPTER VI
OF EXCHANGES |
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121.
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CHAPTER VII
OF GIFTS |
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CHAPTER VIII
OF TRANSFER S OF ACTIONABLE CLAIMS |
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Courtesy
: Chamber of Income Tax Consultants (December,
2001)
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Lex Infotax (
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this file downloaded from
"http://geocities.com/bharat_x_law/tpa1882.htm
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
I
PRELIMINARY
l.
Short title
This Act may be called the Transfer of Property Act, 1882.
This Act may be called the Transfer of Property Act, 1882.
Commencement:
It shall come into force on the first day of July, 1882.
Extent:
It extends in the first instance to the whole of India Punjab and Delhi
But
this Act or any part thereof may by notification in the Official Gazette be
extended to the whole or any part of the said territories by the State
Government concerned.
And any
State Government may from time to time, by notification in the Official
Gazette, exempt, either retrospectively or prospectively, any part of the
territories administered by such State Government from all or any of the
following provisions, namely,-
Section
54, paragraph 2 and sections 3, 59, 107 and 123.
Notwithstanding
anything in the foregoing part of this section, section 54, paragraphs 2 and 3,
and sections 59, 107 and 123 shall not extend or be extended to any district or
tract of country for the time being excluded from the operation of the Indian
Registration Act, 1908 (XVI of 1908), under the power conferred by the first
section of that Act or otherwise.
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-
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, and nothing in the second Chapter of this Act shall be
deemed to affect any rule of Mohammedan law.
3.
Interpretation clause
In this Act, unless there is something repugnant in the subject or context,-
In this Act, unless there is something repugnant in the subject or context,-
"
immovable property" does not include standing timber, growing crops or
grass;
"instrument"
means a non-testamentary instrument;
"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 acknowledgement 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 any part of the territories to which this Act extends under
the 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 embedded for the permanent beneficial enjoyment of that
to which it is attached;
"actionable
claim" means a claim to any debt, other than a debt secured by mortgage of
immovable property or by hypothecation or pledge of movable property, or to any
beneficial interest in movable property not in the possession, either actual or
constructive, of the claimant, which the civil courts recognise as affording
grounds for relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent;
"a
person is said to have notice" of a fact when he actually knows that fact,
or when, but for wilful abstention from an enquiry or search which he ought to
have made, or gross negligence, he would have known it.
Explanation
I: Where any transaction relating to immovable 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 of 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 entered in the indexes kept under section 55 of that Act.
Explanation
II : Any person acquiring any immovable 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).
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
section 54, paragraphs 2 and 3, sections 59, 107 and 123 shall be read as
supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].]
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
II
OF
TRANSFERS OF PROPERTY BY ACT OF PARTIES
(A)
Transfer of property, whether movable or immovable
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 and one or more other living persons; and "to transfer property" is to perform such act.
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 and one or more other living persons; and "to transfer property" is to perform such act.
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 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.
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 anyone 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) A
right to future maintenance, in whatsoever manner arising, secured or
determined, cannot be transferred.
(e) A
mere right to sue 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, naval, air-force and civil pensioners of the
government and political pensions cannot be transferred.
(h) No
transfer can be made (1) insofar as it is opposed to the nature of the interest
affected thereby, or (2) 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)
Nothing in this section shall be deemed to authorise 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 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 authorised 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.
Every person competent to contract and entitled to transferable property, or authorised 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.
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, when 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 movable 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 debtor 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.
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:
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 women (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.
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.
Where
any such direction has been made in respect of one piece of immovable 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.
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.
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.
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.
15.
Transfer to a 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 in regard to those persons only and not in regard to the whole class.
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 in regard to those persons only and not in regard to the whole class.
16.
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.
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-
(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 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 transferor; 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.
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.
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.
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 appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.
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 appears 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.
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.
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 to exist.
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 to 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.
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 lifetime 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.
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.
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. 5000 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. 5000 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.
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,
transfer 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.
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.
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 as minor or marries without C's
consent, 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.
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 does 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.
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 England England
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.
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.
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.
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.
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
III
OF
SALES OF IMMOVABLE PROPERTY
54.
"Sale
"Sale
"
In the
case of tangible immovable 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 immovable 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 immovable 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:
In the absence of a contract to the contrary, the buyer and the seller of immovable 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 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 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 encumbrances on such property due on
such date, and, except where the property is sold subject to encumbrances, to
discharge all encumbrances 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 encumbered 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 buyers 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, 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 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 encumbrances, the buyer may retain
out of the purchase-money the amount of any encumbrances 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 encumbrances 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;
(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, 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.
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.
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 ENCUMBRANCES ON SALE
57.
Provision by court for encumbrances and sale freed therefrom
(a) Where immovable property subject to any encumbrances, 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,-
(a) Where immovable property subject to any encumbrances, 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 encumbrance and any interest due thereon.
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
investment 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
encumbrances, 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
encumbrance, 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.
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
IV
OF
MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES
58.
"Mortgage", "mortgagor", "mortgagee",
"mortgage-money" and "mortgaged" 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.
(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.
(b) Simple
mortgage-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.
(c)
Mortgage by conditional sale-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:
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.
(d)
Usufructuary mortgage-Where the mortgagor delivers possession or expressly or
by implication binds himself to deliver possession of the mortgaged property to
the mortgagee, and authorises him to retain such possession until payment of
the mortgage-money, and to receive the rents and profits accruing from the
property 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 or partly in payment of the mortgage-money, the transaction is called
a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
(e) English
mortgage-Where the mortgagor binds himself to repay the mortgage-money on a
certain date, and transfers the mortgaged property absolutely to the mortgagee,
but subject to a proviso that he will re-transfer it to the mortgagor upon
payment of the mortgage-money as agreed, the transaction is called an English
mortgage.
(f)
Mortgage by deposit of title-deeds-Where a person in any of the following
towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town
which the 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 immovable property, with intent to create a security thereon, the
transaction is called a mortgage by deposit of title-deeds.
(g)
Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by
conditional sale, a 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.
Mortgage when to be by assurance
Where the principal money secured is one hundred rupees or upwards, a mortgage 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 one hundred rupees or upwards, a mortgage 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 a registered instrument signed and attested as aforesaid or
(except in the case of a simple mortgage) by delivery of the property.
59A.
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.
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.
RIGHTS
AND LIABILITIES OF MORTGAGOR
60.
Right of mortgagor to redeem
At any time after the principal money has become 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 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 of the mortgaged property, to deliver 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 acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
At any time after the principal money has become 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 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 of the mortgaged property, to deliver 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 acknowledgement 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 the act
of the parties or by 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 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.
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 of the fulfilment of which he would be entitled to require a retransfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly.
(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions of the fulfilment of which he would be entitled to require a retransfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage debt and transfer the mortgaged property to such third person as the 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 encumbrance 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 cost 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.
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 cost 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.
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.
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 together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,-
In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property 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 authorised to pay himself the mortgage-money from the
rents and profits of the property,-when such money is paid;
(b)
where the mortgagee is authorised to pay himself from such rents and profits 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 the mortgage-money or the balance thereof or
deposits it in court hereinafter provided.
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.
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, 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.
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.
(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.
64.
Renewal of mortgaged lease
Where mortgaged property is a lease, 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.
Where mortgaged property is a lease, 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,-
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, 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 the 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 encumbrance on the property,
that the mortgagor will pay the interest from time to time accruing due on such
prior encumbrance as and when it becomes due, and will at the proper time
discharge the principal money due on such prior encumbrance.
The
benefit of the contracts mentioned in this section shall be annexed to and
shall go with the interest of the mortgagee 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.
65A.
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.
(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.
(2) (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 with 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.
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.
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 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 a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage- money has become 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 a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
A suit
to obtain 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) to
authorise 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 a usufructuary mortgagee as such or a
mortgagee by conditional sale as such to institute a suit for sale; or
(b) to
authorise 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
authorise 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
authorise 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.
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.
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.
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
V
OF
LEASES OF IMMOVABLE PROPERTY
105.
Lease defined
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
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 immovable 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 immovable 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.
In the absence of a contract or local law or usage to the contrary, a lease of immovable 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 immovable 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.
Every
notice under this section must be in writing, signed by or on behalf of the
person giving it, and 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.
Leases how made
A lease of immovable 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.
A lease of immovable 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.
All
other leases of immovable property may be made either by a registered
instrument or by oral agreement accompanied by delivery of possession.
Where a
lease of immovable 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 from time to time, by notification in the Official
Gazette, direct that leases of immovable 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 immovable 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:-
In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable 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 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 inquiry be occasioned by the wrongful act or default of the
lessee, he shall 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 even after the determination of the lease remove, at any time whilst
he is in possession of the property leased 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 authorise 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 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;
(1) 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 or sell timber, pull down or damage buildings 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:
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 immovable 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.
Where the time limited by a lease of immovable 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.
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 immovable property determines-
A lease of immovable 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; 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; 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 any of these cases the lessor or his transferee 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.
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:
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
FURTHER 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.
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 immovable property has been 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.
Where a lease of immovable property has been 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.
Relief against forfeiture in certain other cases
Where a lease of immovable property has been 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-
Where a lease of immovable property has been 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,
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 underleases
The surrender, express or implied, of a lease of immovable 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 underlessee shall be respectively payable to and enforceable by the lessor.
The surrender, express or implied, of a lease of immovable 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 underlessee shall be respectively payable to and enforceable by the lessor.
The
forfeiture of such a lease annuls all such underleases, except where such
forfeiture has been procured by the lessor in fraud of the underlessees, or
relief against the forfeiture is granted under section 114.
116.
Effect of holding over
If a lessee or underlessee 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 underlessee, 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.
If a lessee or underlessee 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 underlessee, 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 insofar as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
None of the provisions of this Chapter apply to leases for agricultural purposes, except insofar as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all 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
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".
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.
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.
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.
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.
On an exchange of money, each party thereby warrants the genuineness of the money given by him.
TRANSFER
OF PROPERTY ACT,1882
CHAPTER
VII
OF
GIFTS
122.
"Gift" defined
"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee.
"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee.
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.
Transfer how effected
For the purpose of making a gift of immovable 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 immovable 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 movable 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.
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.
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 donee 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.
The donor and donee 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 goods as to
Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.
127.
Onerous gifts
Where a gift 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 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 and liabilities of the donor at the time of the gift to the extent of the property comprised therein.
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 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 Mohammedan 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 Mohammedan 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 Mohammedan law.
CHAPTER
VIII : OF TRANSFERS OF ACTIONABLE CLAIMS
130.
Transfer of actionable claim
(1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instruments, 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:
(1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instruments, 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 debtor 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 proceeding and
without making him a party thereto.
Exception
: Nothing in this section applies to the transfer of a marine or fire policy of
insurance 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 provisions of section 132.
130A.
Transfer of policy of marine insurance
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f.1-8-1963 .]
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f.
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 authorised 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.
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised 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.
132.
Liability of transferee of actionable claim
The transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer
The transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer
TRANSFER
OF PROPERTY ACT,1882
The
Schedule
(a)
STATUES
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
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) ACT
OF THE GOVERNOR GENERAL IN COUNCIL
Number
and Year Subject Extent of repeal
IX of 1842 Lease and re-lease The whole
XXXI of 1854 Modes of conveying land Section 17
XI of 1855 Mesne profits and improvements Section 1; in the 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 Punjab Laws Act So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XX of 1875 Central Provinces Laws Act So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XVII of 1876 Oudh Laws Act So far as it relates to Bengal Regulations XVII of 1806
1 of 1877 Specific Relief In ss. 35 and 36, the words "in writing"
IX of 1842 Lease and re-lease The whole
XXXI of 1854 Modes of conveying land Section 17
XI of 1855 Mesne profits and improvements Section 1; in the 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 Punjab Laws Act So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XX of 1875 Central Provinces Laws Act So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XVII of 1876 Oudh Laws Act So far as it relates to Bengal Regulations XVII of 1806
1 of 1877 Specific Relief In ss. 35 and 36, the words "in writing"
(c)
REGULATIONS
Number
and Year Subject Extent of repeal
Bengal Regulation I of 1798 Conditional Sales The whole Regulation
Bengal Regulation XVII of 1806 Redemption The whole Regulation
Bombay Regulation V of 1827 Acknowledgement of debts; interest; mortgages in possession Section 15
Bengal Regulation I of 1798 Conditional Sales The whole Regulation
Bengal Regulation XVII of 1806 Redemption The whole Regulation
Bombay Regulation V of 1827 Acknowledgement of debts; interest; mortgages in possession Section 15
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.
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.
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.
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 assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.
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 assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.
135A.
Assignment of rights under policy of marine insurance
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f.1-8-1963 .]
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f.
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 person claiming by or through him, any actionable claim so dealt with by him as aforesaid.
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 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.
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, warehouse-keeper'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
authorising or purporting to authorise, either by endorsement or by delivery,
the possessor of the document to transfer or receive goods thereby represented.
Foot
Notes
1 Added
by Act No. 3 of 1885.
2
Substituted by Act No. 20 of 1929, for the Year "1877".
3
Substituted by the AO 1950, for the words "in the Provinces or established
beyond the limits of the Provinces".
4
Substituted by Act No. 3 of 1951, for the words "within the limits of Part
A States and Part C States", w.e.f. 1-4-1951 .
5 The
words and figures "Notwithstanding anything contained in the Trustees' and
Mortgagee Powers Act, 1866" omitted by Act No. 48 of 1952.
6
Clause (a) omitted by Act No. 20 of 1929
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