INDEX. 1) Definitions . Immovable property . Attested . Attached to the earth . 2) Distinctions . Lease and Licence. 3) Maxims . 4) Questions . Q :- What properties can and what properties can not be transferred ? Q :- Who are the persons competent to transfer property ? And who are the persons can not transfer their interest ? Q :- What W hat are the essentials of a valid Transfer Transfer of property ? Q :- “ ondition restrainin! alienation is void ." #isc$ss . Q :- “ %estriction rep$!nant to the interest created by transfer is void ." #isc$ss . Q :- When property can be transferred for the benefit of $nborn person. Q :- #isc$ss the r$le a!ainst perpet$ity . What are the e&ceptions to this r$le ? Q :- What is vested interest and what is contin!ent interest ? '&plain the difference between them . Q :- When contin!ent interest becomes vested ? Is a vested interest defeated by the death of Transferee ? Q :- What is condition precedent and what is condition s$bse($ent ? )oint o$t the difference between them . Q :-Write a note on the doctrine of election with s$itable ill$strations . Q :-'&plain the doctrine of feedin! the !rant by estoppel as embodied in section *+ of the T.) T.) Act Act . Q :-Write a note on the doctrine of Lis pendens with s$itable ill$strations . Q :- '&plain the doctrine of )art )erformance with special reference to leadin! cases . Q:- What is sale ? What are the essentials of a valid sale ? What is contract for sale ? What are the difference between the two ? Q :- What are the seller,s seller, s and b$yer,s liabilities ? Q :- #efine ort!a!e . What are the essential elements of a ort!a!e ? ow many ort!a!es are there ? Q/- What is 0s$fr$ct$ary mort!a!e ? What are it1s characteristics ? Q :-What :-What is Anomalo$s ort!a!e ? What are it1s characteristics ? Q :- '&plain and ill$strate the r$le of s$bro!ation as embodied in section 23 of the Transfer of )roperty Act . Q:- #efine #efi ne !ift . #isc$ss #i sc$ss the essentials essen tials of a valid val id !ift. Q:- What is an onero$s !ift $nder the Transfer of property Act ? Q/- ow Lease Leas e of immovable immovabl e property propert y is determined determin ed ? 5) Short Notes . 4imple mort!a!e . 'n!lish mort!a!e . ort!a!e by deposit of title 5 deeds . 0niversal #onee .
aveat 'mptor.
6) ro!"ems . A property is transferred to 6 for life 7 after his death to for life and after 1s death to s$ch son of as shall first attain the a!e of 38 years . havin! no son on the death of transfer 7 is the transfer valid ? A by sale conveys an absol$te interest in a firm to 6 7 The sale deed contains a direction that 6 shall not c$t down the trees . Is the direction valid or invalid ? 9A, sells a piece of a land 96, for consideration of %s 2 orally. Is the sale valid? A and 6 cohabited for years in the past . 6ein! mat$red by that fact that he had s$ch immoral cohabitation with 6 in the past 7 A transfers transfers a property to 6 . Is the transfer valid ?
#ha$ter % &he &ransfer of ro$ert' (ct
#N&*I+,&IN ;. 4$ppose two properties are mort!a!ed and they belon! to different persons. 4$ppose for the realisation of the mort!a!e money only one property is sold and the proceeds are fo$nd to be s$fficient to pay the amo$nt. The res$lt is that one mort!a!or has lost his property while the other !ets it bac< witho$t havin! to pay any thin!. This is a !ross in=$stice. To remedy this in=$stice '($ity invented the doctrine of ontrib$tion which is embodied in 4ection >3. 3. Accordin! to this 4ection7 the different owners are liable to contrib$te rateably to the debt sec$red by the mort!a!e. +. or determinin! the rate at which each sho$ld contrib$te the val$e therefore shall be ta
3. W AB LAI T' %ICT4 T' %TCAC% Section 91. ***** W AB LAI T' %ICT4 T' %TACAC'' Section 92. Any person other than the mortgagor who who pays the mort!a!ee becomes entitled to the ri!hts of the mort!a!ee. D The pa!e of 4 has been left blan<. 4$ch persons are@ ;. 4$bse($ent mort!a!ee. 3. 4$rety. +. Any person havin! an interest in the property. property. *. A co-mort!a!or. 8. Any other person with whose money the mort!a!e has been redeemed if the mort!a!or has by a re!istered deed a!reed to this. This is called the r$le of s$bro!ation. II. #'4 T' LAW 4AL' )%'4%I6' ABE )A%TI0LA% #' T%AB4'% ? ;. The Law of 4ale of Immovable )roperty does prescribe a mode of transfer. The mode of transfer is either Registration or Registration or eli!er" o# $ossession. 3. Whether the appropriate mode of transfer in any partic$lar case is %e!istration or #elivery of )ossession depends $pon two considerations@ FiG Whethe Whetherr the immova immovable ble proper property ty is tan!ib tan!ible le or intan! intan!ibl ible. e. FiiG FiiG Whethe Whetherr the Immovab Immovable le )roperty is worth more than %s. ; or is less than %s. ;. +. If the property is %ntangi&le then %ntangi&le then the transfer can ta
#N&*I+,&IN ;. 4$ppose two properties are mort!a!ed and they belon! to different persons. 4$ppose for the realisation of the mort!a!e money only one property is sold and the proceeds are fo$nd to be s$fficient to pay the amo$nt. The res$lt is that one mort!a!or has lost his property while the other !ets it bac< witho$t havin! to pay any thin!. This is a !ross in=$stice. To remedy this in=$stice '($ity invented the doctrine of ontrib$tion which is embodied in 4ection >3. 3. Accordin! to this 4ection7 the different owners are liable to contrib$te rateably to the debt sec$red by the mort!a!e. +. or determinin! the rate at which each sho$ld contrib$te the val$e therefore shall be ta3. W AB LAI T' %ICT4 T' %TCAC% Section 91. ***** W AB LAI T' %ICT4 T' %TACAC'' Section 92. Any person other than the mortgagor who who pays the mort!a!ee becomes entitled to the ri!hts of the mort!a!ee. D The pa!e of 4 has been left blan<. 4$ch persons are@ ;. 4$bse($ent mort!a!ee. 3. 4$rety. +. Any person havin! an interest in the property. property. *. A co-mort!a!or. 8. Any other person with whose money the mort!a!e has been redeemed if the mort!a!or has by a re!istered deed a!reed to this. This is called the r$le of s$bro!ation. II. #'4 T' LAW 4AL' )%'4%I6' ABE )A%TI0LA% #' T%AB4'% ? ;. The Law of 4ale of Immovable )roperty does prescribe a mode of transfer. The mode of transfer is either Registration or Registration or eli!er" o# $ossession. 3. Whether the appropriate mode of transfer in any partic$lar case is %e!istration or #elivery of )ossession depends $pon two considerations@ FiG Whethe Whetherr the immova immovable ble proper property ty is tan!ib tan!ible le or intan! intan!ibl ible. e. FiiG FiiG Whethe Whetherr the Immovab Immovable le )roperty is worth more than %s. ; or is less than %s. ;. +. If the property is %ntangi&le then %ntangi&le then the transfer can ta
points may be noted:@ FiG Where %e!istration %e!istration is prescribed prescribed as the onl" mode mode of transfer7 delivery of )ossession is neither necessary nor eno$!h to complete the transaction of sale. FiiG Where delivery of possession is prescribed. %e!istration is not necessary to complete the sale. owever7 %e!istration witho$t delivery will be eno$!h to complete the sale. . o other mo'e o# Trans#er.The Trans#er.The provisions as to modes of transfer are e&ha$stive and a sale cannot be effected in any other way. Title cannot pass by admission or by recitals in a deed or petitions to officers or entry in the record of ri!hts. Admission that land has been sold7 will not operate as an estoppel so as to do7 away with the sale for a re!istered conveyance or delivery. *+ al. 2. >. It is necessary to observe the prescribed modes of transfer@ FiG wnership does not pass e&cept by a transfer in the prescribed form. FiiG An $nre!istered deed is not eno+gh FaG In cases where %e!istration is comp$lsory. FbG Also in cases where where the val$e is less than %s. ; and the transfer is not made by delivery. delivery. 2. eaning o# tangi&le an' intangi&le FiG Immovable )roperty is either tangi&le or tangi&le or intangi&le. FiiG The distinction between tan!ible and intan!ible is analo!o$s to the distinction made in 'n!lish Law between a corporeal hereditament and incorporeal hreditament FiiiG A corporeal hereditament is an interest in land in possession i.e. a present ri!ht to en=oy the possession of land. An incorporeal hereditament is a ri!ht over land in the possession of another7 which may be a f$t$re ri!ht to possession7 or a ri!ht to $se for a special p$rpose the land in the possession of another e. !. a ri!ht of way. FivG The contract between tan!ible and intan!ible is a contract between the estate of one who is is possessed of the land7 the tan!ible thin! and that of a man who has the mere ri!ht7 r i!ht7 the intan!ible thin!7 witho$t possession of anythin! tan!ible. FvG A thin! to be tan!ible m$st be capable of act$al delivery. S+laiman -. . /0 All. 96. ;. eaning o# eli!er" o# $ossession FiG #elivery ta
;. Title-deeds are accessory to the estate. They pass with the conveyance witho$t bein! named. 3. This incl$des all deeds relatin! to the property conveyed in possession as well as in power. +. The liability to deliver title-deeds also incl$des the liability to bear the cost of obtainin! them. *. o$nterparts leases and Jab$layets are deeds of title accessory to the estate. 8. The d$ty to deliver title-deeds is not dependent $pon the completion of the conveyance. This d$ty does not arise $ntil the price has been paid. 'K')TIB4 : FiG When the seller retains parts of the property comprised in the deeds7 he may retain the deeds b$t is $nder an obli!ation for their safe c$stody and to prod$ce them or !ive tr$e copies when re($ired. FiiG When property is sold in different lots@the p$rchaser of the lot of the greatest lot is entitled to the doc$ments@s$b=ect to the same obli!ations as above. 6y an e&press covenant7 it may be !iven to the p$rchaser of the largest lot i.e. in area. H. The s$b-section does not say what is to happen if the sales are at different times. +,-E*S /I(+I/I&IES 1. 6'%' B'EAB' ;. 4ection 88 F8G FaG@To 'isclose #acts relating to the interest o# the seller in the roert" materiall" increasing !al+e. ;. 'very p$rchaser is bo$nd to observe !ood faith in all that he says or does in relation to the contract and m$st abstain from all deceipt7 whether by s$ppression of tr$th or by s$!!estion of falsehood. 3. The b$yer7 however7 is $nder no d$ty to disclose latent advanta!es as the seller is to disclose latent defects. +. To this r$le7 matters of title are an e&ception. Altho$!h the seller1s title is ordinarily a matter e&cl$sively within his FcG of the 4pecific %elief Act to compel the vendor tot dischar!e them. FiiG e may dischar!e it himself and set off the amo$nt a!ainst p$rchase money. FiiiG %ecover it by s$bse($ent s$it a!ainst the vendor. *. This s$b-section imposes a personal liability on the b$yer apart from the liability imposed by 4ection 88 F*G FbG on the property@83 All. 901. +,-E*S /I(+I/I&IES II. AT'% B'EAB' ;. 4ection 88 F8G FcG@ To &ear loss, etc. ;. 0nder s$b-section 88 F;G FcG the seller is to bear the loss between ontract and onveyance. 3. After conveyance the b$yer is the owner and the property is at his ris<. e m$st therefore bear
the loss. +. This is different from 'n!lish Law $nder which the contract for sale transfers an e($itable estate and with it liability for loss or destr$ction. *. The seller is liable for waste and if the seller has ins$red the property7 the b$yer can compel him to apply it for restoration. 3. 4ection 88 F8G FdG@ To a" o+tgoings. ;. 6efore conveyance this liability falls $pon the seller@88 F;G F!G after conveyance it falls on the b$yer@ )$blic char!es7 %ent7 Interest and 'nc$mbrances. 3. The liability is stat$tory and not merely contract$al and therefore it is bindin! on a minor vendor on. whose behalf the property is sold@46 a'. . . 464. +. If property is sold free from 'nc$mbrances7 the seller m$st dischar!e it. If sold7 s$b=ect to 'nc$mbrances7 then the interest on 'nc$mbrances +to sale must also be paid by the buyer— 26 Bom. S. R. 942. *I0&S +,-E* AB# 4'LL'% %ICT4 T' 4'LL'% ;. 6'%' B'EAB' ;. 4ection 88 F*G FaG@To ta8e rents an' ro#its. ;. 0ntil conveyance7 the seller contin$es to be the owner. Therefore7 he has a ri!ht to ta
;. 4ection 88 FHG FbG@To claim a charge on the roert" #or +rchase mone" ai' &e#ore con!e"ance. ;. The cla$se as worded ma F;G The b$yer loses his char!e :@ FiG 6y his own s$bse($ent defa$lt FiiG 6y his improperly ref$sin! to ta
;. 4ection 88 FHG FaG@To claim increment. ;. This m$st be so7 beca$se7 after conveyance he is the owner. F)a!e left blan<@ed.G Sa"es free Encum!rances ;. As far as possible7 a sale o$!ht to be free from 'nc$mbrances. To provide sales bein! made free from 'nc$mbrances T. ). Act contains two sections which ma defines what is a mort!a!e. Accordin! to the section7 there are three in!redients of a mort!a!e transaction :@ FiG The transfer of interest. FiiG In specific immovable property. FiiiG or the p$rpose of sec$rin! the payment of money advanced by way of a loan. II. 'K)LABATIB T'4' IBC%'#I'BT4. FiG Immovable property is not an essential in!redient of mort!a!e: F;G 0nder the 'n!lish Law7 all
meetin! of that liability. ; The p$rpose of the transfer m$st be sec$rin! of the debt. A transfer made for the p$rpose of sec$rin! a debt m$st be distin!$ished from a transfer7 the p$rpose of which is to dischar!e a debt. 2/ All. 11/<0 % .A. /4. %% Bom. 462. +. The ri!ht transferred m$st be to enable the man to recover the debt. The transfer m$st not e&tin!$ish the debt. If the effect of the transfer is to e&tin!$ish the debt then there is no mort!a!e. %ll+stration. %% Bom. 462 A&'+l&hai vs. =ashi In ;>H37 A in consideration of %s. ;8 passed to B a writin! called =ar> Ro8ha (or debt-note). It proved (inter alia) that B sho$ld hold and en=oy a certain piece of land belon!in! to A for twenty years7 that at the end the land sho$ld be restored to A free from all claims in respect of principal or interest. ?el', not a mort!a!e. 2/ All. 11/. %TCAC' )A%'# WIT T'% %4 ALI'BATIB4 %TCAC' AB# 4AL' ;. 4ale is defined in 4ection 8*@It is a transfer of ownership for a price. The price is not a loan and the transfer is not a transfer of an interest b$t is an absol$te transfer of ownership. 3. In a mort!a!e7 the money paid is a loan and the transfer is a transfer of an interest only. +. In a breach of a contract of sale7 the ri!hts are the ri!hts of a vendor and p$rchaser while the contract is a contract of mort!a!e the ri!hts are those of a mort!a!or and mort!a!ee. *. In sale7 the property is transferred absol$tely. In mort!a!e7 the property serves only as a sec$rity for the repayment of a debt. %TCAC' AB# T'% JIB#4 4'0%ITI'4 ;. There are fo$r
+. Lien does not create !eneral ownership as a mort!a!e does7 not even ($alified property as in a pled!e@only ri!ht to retain possession. *. 6oth mort!a!ee and pled!ee can sell: b$t lien holder cannot. Mortae an a chare ;. A char!e is defined in 4ection ;. There are two elements in a char!e: F;G There is a pec$niary liability. F3G Immovable property is made sec$rity for the dischar!e of that pec$niary liability. 3. In a mort!a!e there are three elements :@ FiG There is pec$niary liability. FiiG Immovable property is made sec$rity for the dischar!e of that pec$niary liability. FiiiG There is a transfer of an interest in that property in favo$r of the creditor. +. In a char!e there is no transfer of interest. There is only b$rden. / -al. 7 (44) : 1 ah. 660 T. B. / -al. 9/. *. The difference between mort!a!e and char!e is material. ;. A mort!a!ee can follow the mort!a!ed property in the hands of any transferee from the mort!a!or. While a char!e can be enforced only a!ainst transferee with notice@ -al. 9/. N #I'%'BT LA44'4 %TCAC' ;. The section en$merates si& classes of mort!a!e :@ i 4imple mort!a!e. ii ort!a!e by conditional sale. iii 0ns$fr$ct$ary mort!a!e. iv 'n!lish mort!a!e. v '($itable mort!a!e. vi Anomalo$s mort!a!e. 3. haracteristics of the different classes of mort!a!e. FiG 4imple ort!a!e 1 A 4imple mort!a!e involves two thin!s : FiG A personal obli!ation7 e&press or implied7 to pay. FiiG The transfer of a ri!ht to ca$se the property to be sold. )ersonal obli!ation ;. When a person accepts a loan7 there is involved a personal liability to pay7 $nless there is a covenant to pay o$t of a partic$lar f$nd. 10 -al. 740:22 -al. 44:16 -al. /40,1 a'. 192: 1/ a'. 04 : 27 a'. /26 6. ;. A loan may be a sec$red loan or $nsec$red loan. 3 'very $nsec$red loan involves a personal obli!ation to pay. 441. A. 7. +. The only case of a loan in which a personal obli!ation to pay is ne!atived7 is where there is a covenant to pay o$t of a partic$lar f$nd. -ases. 10 -al. 740 : 22 -al. 44 : 16 -al. /40 : 1 a'. 192 ;/ a', 04 : 27 a'. /26 6. *. Whether a loan7 for which there is sec$rity7 involves a personal obli!ation to pay is a ($estion of constr$ction. Two propositions may be stated as those of law :@ FiG )ersonal liability is not displaced by the mere fact that sec$rity is !iven for the repayment of the loan with interest.
FiiG The nat$re and terms of sec$rity may ne!ative any personal liability on the part of the borrower. 8. In a simple mort!a!e7 there is always sec$rity !iven for the loan. The loan is a sec$red loan. 6$t nat$re and terms of the sec$rity m$st not ne!ative the personal liability of the mort!a!or. A personal covenant to pay is implied in and is an essential part of every simple mort!a!e. -ases. 22 All. 4/ (461) : 29 a'. 491 : 0 All. . H. In the absence of s$ch a covenant7 the sec$rity wo$ld be a mere char!e. -ases. 42 All. 1/ (164)<46 1. A. 22: /2 All. 901. II. *iht to cause the $ro$ert' to !e so". ;. This is ari!ht in rein altho$!h it can only be enforced by the intervention of the o$rt7 as the words7 1 ca$se to be sold 1 indicate. 3. The transfer of this ri!ht may be e&press or it may be implied. ii) Mortae !' #onitiona" Sa"e 1. #haracteristics. F;G The transfer is by way of sale. It is a t ransfer of ownership. F3G The difference between sale and mort!a!e by conditional sale is that7 in sale the transfer is absol$te while in mort!a!e by conditional sale7 it is not absol$te b$t is s$b=ect to a condition. F+G The condition may ta. F+G If it is a mort!a!e by conditional sale7 then@ FiG The ri!ht to reconveyance is not personal b$t is a ri!ht in term and can be e&ercised by the transferee. FiiG Time will not be treated as of the essence. +. ;hat is it that 'isting+ishes sale ith a con'ition o# re+rchase an' mortgage &" con'itional sale @ F;G In a mort!a!e by conditional sale7 the transaction notwithstandin! the form7 remains a lendin! and borrowin! transaction. The transfer of land7 altho$!h it is in the form of a sale7 in fact it is a transfer by way of sec$rity. F3G In a sale with a condition of rep$rchase7 the transaction is not a lendin! and borrowin! arran!ement. It is not a transfer of an interest. It is a transfer of all ri!hts. It is not a transfer by way of sec$rity. It is an absol$te transfer reservin! only a personal ri!ht of rep$rchase. ;hat is the test #or 'etermining hether a transaction is a mortgage @ F;G Bo partic$lar words or form of conveyance are necessary to constit$te a mort!a!e. As a !eneral r$le7 s$b=ect to very few e&ceptions7 where a transfer of an estate is originall" intended as a sec$rity for money7 it is a mort!a!e and where it is not so ori!inally intended7 it is not a mort!a!e.
; It is not the name !iven to a contract by the parties that determines the nat$re of the transaction. A doc$ment may be held to be a sale altho$!h it is called a mort!a!e by the parties. 3 Bom. 11. 3 It is the =$ral relation7 constit$ted by it7 that will determine whether the transaction is a mort!a!e or not. 3 Bom. 462. *. ?o to #in' hat the intention o# the arties as @ 6y findin! o$t how they have treated the money advanced ? If they have treated it as a debt7 then it is mort!a!e. The criteria adopted by the o$rts are@ FiG The e&istence of a debt FiiG The period of repayment7 a short period bein! indicative of a sale and a lon! period of a mort!a!e. FiiiG The contin$ance of the mort!a!or in possession indicates a mort!a!e. FivG The price below a tr$e val$e indicates a mort!a!e. In applyin! these tests7 the o$rts p$t the on$s on the party alle!in! that an ostensible sale-deed was a mort!a!e7 and in a case of ambi!$ity7 lean to the constr$ction of a mort!a!e. 8. %s oral e!i'ence o# intention a'missi&le @ ;. 6efore the Indian 'vidence Act was passed7 oral evidence and other instr$ments were freely admitted to prove this intention. 6$t this practice was condemned by the )rivy o$ncil. 3. After the passin! of the Indian 'vidence Act7 the ($estion was !overned by 4ection 23. +. 4ection 23 e&cl$des oral evidence to contradict a written doc$ment. The Indian o$rts7 never the less7 on the a$thority of incoln vs. ;right (1/9) 4 e 5. . 16 admitted evidence of acts and cond$ct of parties to show7 that a deed which p$rported to be an absol$te conveyance was intended to operate as a mort!a!e. *. In ;>227 the )rivy o$ncil definitely r$led in Bal8ishen !s. egge< 22 All. 149 =3O. A. /. that the r$le in incoln vs. ;right had no application in India. 8. The res$lt is that7 the o$rts are definitely limited to the doc$ment itself in order to ascertain the intention of the parties. The ($estion is not what the parties meant7 b$t what is the meanin! of the words they $sed. Im$ortance of the ro7iso. 1 The condition m$st be embodied in the same doc$ment. oints to !e note. ;. nly means that in determinin! the ($estion if the condition is contained in another doc$ment o$rt cannot ta
payment. II. This closely resembles the conditional mort!a!e. i##erence. FiG In the 'n!lish ort!a!e the sale is absol$te while in the mort!a!e by conditional sale the sale is ostensi&le. C+er". ow can it be a mort!a!e if the sale is absol$te ? This seems to conflict with the definition of mort!a!e which is transfer of an interest. #ifference in practice merely means this: that in 'n!lish ort!a!e7 the mort!a!ee is entitled to immediate possession. While in the case of a mort!a!e by conditional sale7 the ri!ht to possession depends $pon the terms of the mort!a!e. F3G In 'n!lish ort!a!e7 there is a personal obli!ation to pay. In a conditional mort!a!e7 there is no s$ch ri!ht. %'Q0I4IT'4 A %TCAC' 6E #')4IT TITL' #''#4. ;. e&t. ;. A debt has been defined as a s$m of money d$e now even tho$!h payable in the f$t$re7 and recoverable by action@F233G 3 =.B./99 (617). BT'.@ A4 to difference between a debt d$e by stat$te and debt d$e by contract@F;233G 3 J. 6. +. There is no necessity of a promise to pay in order to render the money recoverable when the debt is a stat$tory debt. 3. The debt may be an e&istin! debt or a f$t$re debt. The deposit may be to cover a present as well as f$t$re advances@/0 %. A. 2 : 17 All. 2/2 : 17 All. 2/2 :2/ -al. 611. + The debt may be a !eneral balance that mi!ht be d$e on an acco$nt. 3 a'. 29 $. -. I #')4IT TITL' #''#4. FiG &it"e ees ;. It has been held in 'n!land that it is s$fficient if the deeds deposited &ona #i'e relate to the property or are material e!i'ence o# title, and that7 it is not necessary that all the deeds sho$ld be deposited. (172) -h. A. 1//. 3. These cases have been followed in India. /9 -al. 7 1. +. 6$t )a!e c.#. in ;; Rang 29 . 6. held that the doc$ments m$st not only relate to the property b$t m$st also be s$ch as to show a rima #acie or apparent title in the depositor. *. If the doc$ments show no
mort!a!e. 8. The ($estion is whether mere possession co+le' ith 'e&t does not raise an inference that it is a mort!a!e ? There is a difference of opinion but the better opinion seems to be as between creditor and debtor possession coupled with debt raises a presumption in favour of a mortgage. I. T'%%IT%IAL %'4T%ITIB4. ;. This
The )rivy o$ncil says M It is idle to say that a debt covered by a sec$rity is in the same position with one dependin! solely on the personal obli!ation of the debtor M. III %'Q0I4IT'4 A ALI# %TCAC' This re($ires the consideration of the followin! topics : I. ormalities with which a mort!a!e m$st be e&ec$ted. II. The proper s$b=ect-matters of a mort!a!e. III. The capacity to !ive and to accept a mort!a!e. I. ontents of a mort!a!e-deed. I %ALITI'4 WIT WI IT 04T 6' 'K'0T'# Section /9. ;. '&cept in the case of mort!a!e by a deposit of title-deeds7 every mort!a!e created sec$rin! the repayment of %s. ; or more as principal money m$st7 $nder the T. ). Act7 be effected by a re!istered instr$ment7 si!ned by the mort!a!or and attested b y at least two witnesses. 3. Where the principal money is less than %s. ;7 a mort!a!e may be created either by s$ch an instr$ment or e&cept in the case of simple mort!a!e by delivery of possession of the mort!a!ed property. +. If the principal is Above %s. ;7 the transaction of mort!a!e m$st be in writin! i.e. it m$st be by a deed and the deed m$st be:@ F;G 4i!ned by the mort!a!or. F3G Attested by at least two witnesses. F+G %e!istered. *. If it is less than %s. ; no writin! is necessary. )arol a!reement is eno$!h in the case of :@ F;G 4imple mort!a!e. F3G onditional mort!a!e. F+G 'n!lish mort!a!e. F*G 0s$fr$ct$ary mort!a!e. )arol a!reement pl$s transfer of possession. * We have only to consider mort!a!es where the principal is above %s. ;. ; N 4ICBAT0%' Ceneral la$ses Act ;>2. 4ection + F83G. ;. The si!nat$re may be made by means of types or by a facsimile. 38 -al. 911. uch person having a name stamp used by servant. 3. It may be the mar< of an illiterate person. 41 Bom. 4 mar< of a da!!er. +. 6$t a literate person cannot si!n by ma
the instr$ment and a mere ac / +8 ad. H which overr$le the Allahabad and 6ombay decisions to the contrary@ 27 Bom. 91 an' 26 All. 69. N ATT'4TATIB )A%#ABA4IB4. *. The same r$le was applied. The si!nat$re of the )ardanashin lady m$st be in the presence of the witness otherwise he cannot be said to be an attestin! witness. -ase a. 4/1. A. 94. A mort!a!e-deed for over %s. ; p$rported to be si!ned by a )ardanashin lady on behalf of her son7 a minor and to be attested by two witnesses. It appeared from the evidence that the lady was behind the parda when the deed was ta2G 3 h. H>. . Where an instr$ment is to come into operation7 not immediately7 b$t only $pon the performance of some condition7 it is . ere e&ec$tion is not eno$!h. There m$st be intention to !ive it immediate effect. #elivery means an intention to !ive immediate effect. That intention is independent of the process of delivery or non-delivery. 2. Where a doc$ment intended to be e&ec$ted by one or some only and others ref$se to complete it the ($estion whether it is bindin! on those who have e&ec$ted it7 is one of the intention of the parties to be !athered from the facts of each.
I
N AT'%IAL ALT'%ATIB IB A #''#@''T ;. A material alteration in a deed made itho+t the consent of the mort!a!or and with the privity and -al. //64.B. FiiG When the deed is re!istered in a circle in which the property is not sit$ate. 32 -al. 6/4. FiiiG Where the deed is not presented for re!istration by the proper person the mort!a!e is invalid. /1. A. / Two other ($estions have to be considered in connection with the s$b=ect-matter of ormalities. I I4 'K'0TIB T' #''# 'B0C T CI' ''T T T' %TCAC' ? ;. It is hardly necessary to state that the mere e&ec$tion of a deed is not eno$!h if it is not intended to operate as a bindin! a!reement. 3. This is e&pressed in 'n!lish Law by the form$la that a deed m$st be delivered. +. This may not be clear $nless one $nderstands what meant by 1delivered1. There is nothin! mysterio$s abo$t the delivery of a deed which does not represent any technical process7 b$t only indicates that the instr$ment is to come into immediate operation. *. 4hephard in his To+chstone spea2. Whole of 6ritish India P incl$des the 4ched$led #istricts. 83 ad. ;. Any newly ac($ired territory becomes an anne&ation part of 6ritish India@nsle" vs. $lo'en
(1/6/9) % Bom. 14/. 6$t it retains its laws $ntil altered by the rown or Le!islat$re. 19 Bom. 60 (66) #olloing % .%. A. 17/271. Acts s$ch as 4tamp Act passed by the Indian Le!islat$re have been e&tended to many places which tho$!h o$tside 6ritish India are $nder 6ritish Administration Fe. !. 6an!alore7 yderabad assi!ned districts: 6aroda cantonment: o$nt Ab$7 etc.G by notifications $nder 4ections * and 8 of the orei!n $risdiction and '&tradition Act7 ;>27 and the Indian Forei!n $risdictionG rder in o$ncil7 ;23. N A)AITE T CI' % TAJ' A %TCAC' ;. A mort!a!e is a trans#er o# roert" and also a contract. It m$st therefore satisfy the re($irements as to capacity laid down for a valid transfer of property and for a valid contract. N %'Q0I%''BT4 A4 T A)AITE % A ALI# T%AB4'% )%)'%TE ;. Transfer of property means an act by which a livin! person conveys property to one or more other livin! persons or to himself or to himself and one or more other livin! persons @4ection 8. 3. A mort!a!e bein! an act of transfer of property7 the parties to an act m$st be livin! persons. +. When it is said that both persons m$st be livin! it is obvio$s that the intention is to ma
N )'%4B ;. The word M person M accordin! to the Ceneral la$ses Act incl$des any company or association or body of individ$als whether incorporated or not. 3. That the word person incl$des a M =$ristic person M s$ch as a corporation was a lon! established view. 6$t it is now made clear by a special proviso which was added to 4ection 8 of the T. ). Act in ;232. +. A corporation7 which has power to ac($ire and hold land has also impliedly power to mort!a!e it for p$rposes of carryin! o$t the ob=ect for which it was created. The powers of stat$tory corporations are !enerally spea
this Act or by any other law. 'very
and the mort!a!ee. 3. There are two ($estions to be considered@ FiG What are the ri!hts of the mort!a!or and mort!a!ee ? FiiG What is the nat+re of those ri!hts ? : 8hat is the nature of the rihts ;. The 'n!lish Law divides :@the interests of the mort!a!or is spo
II. The followin! cla$ses are not deemed to be clo!s on %edemption:@ F;G Bot to redeem $nless prior mort!a!es are redeemed. F3G Bot to redeem an $s$fr$ct$ary mort!a!e $ntil after the e&piry of ;8 years. F+G )ostponement of the ri!ht to ta
;. As lon! as the mort!a!or remains in possession7 he is at liberty to e&ercise the ordinary ri!hts of property and to receive the rents and profits witho$t acco$ntin! for them. 3. Q$estion is whether the mort!a!or is liable for waste ? +. This is a 4ection which deals with the doctrine of waste. Waste is either vol$ntary or permissive. Fol+ntar" aste implies the doin! of some act which tends to the destr$ction of the premises7 as by p$llin! down ho$ses7 or removin! fi&t$res / or to the chan!in! of their nat$re as the conversion of past$re land into arable or p$llin! down b$ildin!s. $ermissi!e ;aste implies an omission whereby dama!e res$lt to the premises7 where for instance ho$ses are s$ffered to fall into decay. To constit$te vol$ntary waste by destr$ction of the premises7 the destr$ction m$st be wilf$l or ne!li!ent/ it is not waste if the premises are destroyed in the co$rse of reasonable $ser and any $ser is reasonable if it is for the p$rposes for which it is intended to be $sed7 and if the mode and e&tent of the $ser is apparently proper7 havin! re!ard to the nat$re of the property and what the tenant
;. 0nder this fall the followin! ri!hts@ F;G %i!ht to foreclose H. F3G %i!ht to sell HOH2. F+G %i!ht to s$e for mort!a!e money H>. F*G %i!ht to claim money on sale and ac($isition +. 3. A s$it to obtain a decree that a mort!a!or shall be absol$tely debarred of his ri!ht to redeem the mort!a!ed property is a s$it for foreclos$re. BT'.@ ;. ort!a!e money does not mean the whole of the mort!a!e money. If a mort!a!e is payable by instalments7 it is open to the mort!a!ee to brin! a s$it for foreclos$re for an instalment of the principal and interest.1 . .1. 2. 3. In the absence of an e&press stip$lation7 a mort!a!ee is not bo$nd to receive payment by instalments@24 All. 461. +. A s$it for interest is maintainable even before the principal money became d$e $nless there is a covenant prohibitin! him from doin! so. *.The three ri!hts are not available to every mort!a!ee. ;. T' %ICT T 40' % B'E. Section 6. This is available only where the mort!a!or binds himself to repay the same. C+estion.When can it be said that a mort!a!or ersonall" binds himself to pay ? There are two views on the matter. FaG A personal covenant is pres$med in all mort!a!es of whatever form. Accordin! to this view7 the only difference that can arise is that the o$rt mi!ht in the absence of an e&press covenant7 demand more clearly implied covenants than it mi!ht re($ire in other case@1 ah. 2/9. FbG The other view is that a covenant can arise only where there is an e&press covenant the words are &in's himself. This cla$se wo$ld be $nnecessary if personal covenant was implied in all cases. B" 'e#inition Section /. ;. The mort!a!or in a simple mort!a!e &in's himself to repay the money. 3. In a mort!a!e by conditional sale7 he says that M if he pays he will recover his property M. +. In a $s$fr$ct$ary mort!a!e he does not even ma
i ii iii
possession or fails to sec$re the mort!a!ee in his possession. *iht to se"" ;. This ri!ht belon!s only to@ 4imple mort!a!ee. 'n!lish mort!a!ee. FiiiG '($itable mort!a!ee.
3. They cannot s$e to obtain possession. They can only s$e for sale. If the o$rt erroneo$sly !ives him possession7 that possession does not amo$nt to foreclos$re and the m ort!a!or can s$bse($ently redeem the mort!a!e. ;2 a'. 249 (2/23/) ). -. B#ITIB4 % T' 'K'%I4' T' %ICT 4AL' AB# %'L40%'. ;. After the mort!a!e-money has become d$e and before decree for redemption is made. 3. 4$it m$st be for the whole of the mort!a!e-money. There cannot be a s$it for the realisation of a part of the mort!a!e-money by sale or foreclos$re of a part of the mort!a!e property. Dcetion.If there is a severence of the interests of the mort!a!ee with the consent of the mort!a!or7 a s$it for a part may be bro$!ht by the mort!a!ee. Section 67 A. +. A mort!a!ee who holds man" mort!a!es a!ainst the same mort!a!or m$st brin! one s$it on those mort!a!es in respect of which@ FiG A ri!ht to s$e has accr$ed to him and FiiG In respect of which he has a ri!ht to obtain the same
In the other case the foreclos$re is e($ally prohibited accordin! to 'n!lish practice on the principle that it is the d$ty of the tr$stee to cons$lt the interests of the mort!a!or and that it is for the mort!a!or1s interests that a sale and not foreclos$re7 sho$ld ta
*iht of mortae to riorit' I. )%I%ITE 6E TI'. ;. The !eneral r$le re!ardin! priority in the matter of transfers of interests in immovable property is laid down in 4ection *> of the T. ). Act. 3. The same r$le applies to ($estions in re!ard to mort!a!es so that priority of mort!a!es in India depends $pon the respective dates of their creation7 the earlier in date havin! precedence over the latter@-/6-al.6. +. 4ection > is an e&ception to this r$le. It lays down that the o$rt wo$ld postpone the prior mort!a!ee to the s$bse($ent mort!a!ee where the prior mort!a!ee has7 thro$!h fra$d7 misrepresentation or !ross ne!lect7 ind$ced the s$bse($ent mort!a!ee to advance money on the sec$rity of the mort!a!ed property. isreresentation ;. Is defined in 4ection ;> of the Indian ontract Act. 3. It does not necessarily mean fra$d$lent misrepresentation. Gra+' 5ross egligence. There is a difference between 'n!lish and Indian Law. Accordin! to 'n!lish Law !ross ne!li!ence means ne!li!ence amo+nting to #ra+'. Accordin! to Indian Law !ross ne!li!ence is different from fra$d. II. )%I%ITE 6E )AE'BT. Q.@an a mort!a!ee ac($ire priority over an intermediate mort!a!ee by b$yin! the ri!hts of an earlier mort!a!ee ? Section 9 ;. A mort!a!ee cannot ac($ire priority over an intermediate mort!a!ee by payin! off a prior mort!a!ee whether he pays with or witho$t
proceed first a!ainst that property which is not the s$b=ect-matter of sec$rity for the debt of another mort!a!ee. This is embodied in 4ection >;. Bote.@;. It is $nnecessary for the mort!a!ee to have had no notice of the former mort!a!e in order that he may be able to claim the benefit of marshallin!. #(&E* = /(8 EIDEN#E /(8 EIDEN#E 1. : Meanin of the ;or E7ience Li the o$rt believes it to e&ist.........M The '&pression matters !efore it is m$ch wider than what the word E7ience is said to incl$de. 'vidence does not incl$de : F;G 4tatement made by the parties and acc$sed persons. F3G demeano$r of witnesses. F+G %es$lts of local inspection. F*G acts =$dicially noted. F8G Any real and personal property7 the inspection of which may be material in determinin! the ($estion at iss$e s$ch as weapons7 tools or stolen property. FHG Q$estions p$t to the acc$sed by the a!istrate and the answers. 6$t all these are incl$ded in the e&pression M matters before it M. The point is that the definition of evidence is strictly applicable to matters dealt with in the 'vidence Act. It does not apply to evidence as dealt with by other Acts. 2. : 0enesis of the Inian E7ience (ct. ;. The Law of 'vidence in India is contained in Act I of ;>3. : Di7ersit' of the /a; of E7ience 3. There were two sets of o$rts in 6ritish India ever since ;+ when the %e!$latin! Act was
passed by )arliament with a view to control the administration by the 'ast India ompany of its Indian possessions. There were the 4$preme o$rts established by %oyal harter in the )residency Towns of 6ombay7 adras and alc$tta. In the $ffassils7 there were o$rts established by the 'ast India ompany7 ivil and riminal. The r$les of 'vidence followed by the 4$preme o$rts were different from the r$les of evidence followed by the m$ffassil o$rts. +. The 4$preme o$rts followed s$ch of the r$les of evidence as were contained in the ommon and 4tat$te Law which prevailed in 'n!land before ;3H and which were introd$ced by the harter of that year in India. 4ome others were r$les to be fo$nd in s$bse($ent stat$tes of )arliament e&pressly e&tended to India/ while others a!ain7 had no !reater a$thority than that of $se and c$stom. *. or the o$rts o$tside the )residency Towns and not established by the %oyal harter no complete r$les of 'vidence were ever laid down or introd$ced by a$thority. %e!$lations made between ;2+ and ;>+* contained a few r$les. ther were derived from a va!$e customar' "a; of e7ience partly drawn from the edya and Mohomeen /a; fficers. 0thers were drawn from nglish te!t boos. : Efforts to;ars ,niformit'? 8. The first Act of the Covernor Ceneral in o$ncil which dealt with evidence7 strictly called7 was (ct X of 1=35 which applied to all the ourts in 'ritish India and dealt with the proof of the "cts of the overno r Ceneral in o$ncil. This was followed by e"e7en enactments $asse at inter7a"s d$rin! the ne&t twenty years7 which effected vario$s small amendments of the law of evidence and applied to the o$rts in India several of the reforms in the law of 'vidence made in 'n!land. In ;>887 Act II of ;>88 was passed for the f$rther improvement of the law of evidence which contained many provisions applicable to all the o$rts in 6ritish India. H. Botwithstandin! this attempt at $niformity there contin$ed to be a !reat deal of disparity between the r$les of 'vidence applicable in the )residency Towns and those applicable in the $ffassil. This disparity contin$ed to be the s$b=ect of fre($ent =$dicial comment. To remedy this state of affairs. Act of ;>3 was passed. : #onstruction of the (ct ? ;. An Act may be F;G to consoli'ate or F3G to amen' or F+G to consoli'ate an' to amen' or it may be to 'e#ine i. e. to codify. The constr$ction of an Act wo$ld differ accordin! as it is a consolidatin! Act or a odifyin! Act. 3. #onstruction of a #oif'in (ct : The r$le of constr$ction in re!ard to a odifyin! Act is laid down in F;>2;G A. . ; F;3G. Ban8 o# nglan' vs. Fagliano . or' ?als&+r" observed: ). ;3. M I am wholly $nable to adopt the view that where a stat$te is e&pressly said to odify the law7 yo$ are at liberty to !o o$tside the ode7 so created7 beca$se before the e&istence of that code another law prevailed. M or' ?arschell observed: ). ;** M The proper ca$se is in the first instance to e&amine the lan!$a!e of the 4tat$te and to as< what is its nat$ral meanin!7 uninf"uence !' the consierations eri7e from the $re7ious state of the "a; and not to start with en($irin! how the law previo$sly stood and then ass$min! that it was probably intended to leave it $naltered7 to see if the words will bear an interpretation in conformity with this view. M +. The ob=ect of codification of a partic$lar branch of the law is that7 on any point specifically dealt with by it7 s$ch law sho$ld be so$!ht7 for in the codified enactment7 and is ascertained by interpretin! the lan!$a!e $sed.
*. onstr$ction of a onsolidatin! Act: The r$le of onstr$ction in re!ard to a onsolidatin! Act is laid down in F;>2*G 3 h. 88. Shitt" . (2. 3#1) observed after referring to the rule of construction lai d 'on in Ban8 o# nglan' vs. Fagliano in regard to a codifying "ct. in 4ord 5alsbury M.......... 6$t I have here to deal7 not with an Act of )arliament codifyin! the law7 b$t with an Act to amend and to consolidate the law and therefore it is I say these observations Fof lord alsb$ryG do not apply and I thin< it is le!itimate in the interpretation of the section in this amendin! and consolidatin! Act to refer to the previo$s state of the law for the p$rpose of ascertainin! the intention of the le!islat$re. M 8. The ob=ect of consolidation with or witho$t amendment is merely to assemble to!ether the scattered parts of the '&istin! law. It is merely a re-enactment of the old law. It is not a new enactment of the law. )rima facie the same effect o$!ht to be !iven to its provisions as was !iven to those of the Acts for which it was s$bstit$ted. H. The Indian 'vidence Act is as stated in the )reamble an Act to -onsoli'ate, 'e#ine and amen' the law of evidence. It is not a stat$te which merely consolidates and amends the evidence i. e. it codifies the law of evidence. Its constr$ctions will be !overned by the r$le laid down in Ban8 o# nglan' vs. Fagliano and not by the r$le laid down in it. N 4cope and '&tent of the Act ;. The scope of the Act is defined in Section 2. 0nder section 3 the law of evidence is contained : FiG In the 'vidence Act and FiiG In other Acts or stat$tes which maH;. F+G 'nactments mentioned in the 4ched$le. 3. The 'vidence Act and other Acts relatin! to 'vidence@ F;G The 'vidence Act is a separate stat$te dealin! with an important branch of law and its provisions are independent of the r$les of proced$re contained in the riminal )roced$re ode and m$st have f$ll scope $nless it is clearly proved that they have been repealed or altered by another stat$te. Lah. >*. : ($$"ication of the (ct 4ection I prescribes the application of the Act (1) Territorial Alication It e&tends to the whole of 6ritish India and therefore applies to the 4ched$led #istricts. It e&tends to places where it has been declared to be in force. (2) Alication to Tri&+nals It applies to all =$dicial proceedin!s in or !efore an' #ourt. FiG WAT I4 'ABT 6E A 0#IIAL )%''#IBC4 ? There is no definition. An in($iry is =$dicial if the ob=ect of it is to determine a =$ral relation between one person and another or a !ro$p of persons or between him and the omm$nity !enerally / b$t even a $d!e actin! witho$t s$ch an ob=ect in view is not actin! =$dicially. ;3 6om. ; . ;. A. +*. An in($iry $nder section +3 of the 6ombay Land %even$e ode is not a $dicial proceedin!. 33 6om. 2+H. 3. The Act applies to all =$dicial proceedin!s i. e. to ci7i" as well as crimina".
+. The Act spea*8. 4. &he #ourt means a"" $ersons exce$t (r!itrators ;ho are "ea""' authorise to ta9e e7ience. That bein! so the word o$rt is not to be confined to persons presidin! over a ivil trib$nal or a riminal trib$nal. A %e!istrar holdin! an en($iry and ta. A ommissioner appointed $nder order KKI %. ;-; of the ivil )roced$re ode and $nder 4ection 8+-8> of the riminal )roced$re ode is a person le!ally entitled to taG of the ivil )roced$re ode defines the word 1 $d!e 1 to mean the presidin! officer of a ivil o$rt. 4ection ;2 of the Indian )enal ode7 also !ives definition of the word $d!e. Accordin! to this definition a $d!e is a person desi!nated as a $d!e also a person who is empowered by law to !ive7 in any le!al proceedin!7 civil or criminal a definitive =$d!ement. 6. Maistrates. Bo definition of this term is !iven in the Act. The Ceneral la$ses Act FK of ;>2G lays down the followin! definition of the term:@ a!istrate shall incl$de every person e&ercisin! all or any of the powers of a a!istrate $nder the ode of riminal )roced$re for the time bein! in force. %. &he $ecu"iarities of these efinitions is that the' are neither uniform nor are the' coA extensi7e. FiG The basis of the definition of $d!e in the ivil )roced$re ode is the presidency of the officer. The basis of the definition of the same word $nder the Indian )enal ode is his a$thority to !ive the $d!ement. The basis of the definition $nder the evidence is the power to ta
