Copyright
India.

The pocket Evidence act: containing also the Contract act, the Sepcific ... online

. (page 24 of 58)
Online LibraryIndiaThe pocket Evidence act: containing also the Contract act, the Sepcific ... → online text (page 24 of 58)
Font size
QR-code for this ebook


he claims ; and shall, if necessary, put the defendant into
possession of the property ; but

that, if the payment is not made on or before the day
to be fixed by the Court, the defendant shall be absolutely
debarred of all right to redeem the property.

Zj^ If payment is made of such amount and of such

-. . . subsequent costs as are mentioned in

cJe^f^^eit section ninety-four, the defendant shall (if

ofamountdue necessary ) be put into possession of the

mortgaged property.

Digitized by VjOOQIC



SECS. 87-88.] THE TRANSFER OF PROPERTY ACT. 39 1.

If such payment is not so made, the f^iiitiff mav a]^ply
Ord b 1 t« ^^ ^^® Court for an order that the derendant
f Ji ft!^u!^ Jl *^d *11 persons claiming through or under
loriorecioswe. j^j^ ^ debarred absolulely of all right to
redeem the mortgaged property, and the Court shall
then pass such order, and may, if necessary, deliver
possession of the property to the plaintiff:

Provided that the Court may, upon good cause shewn,
and upon such terms, if any, as it thinks

larwTthiifl ^^' ^*» ^^^^ **"^® ^^ '*°*^ postpone the day
^^ appointed for such payment.

On the passing of an order under the second paragraph,
of this section the debt secured by the mortgage shall be
deemed to be discharged.

In the Code of Civil Procedure, schedule IV, No.
129, for the words " Final decree, " the words " Decree
absolute " shall be substituted.

88. In a suit for sale, if the plaintiff succeeds, thQ
Court shall pass a decree to the effect
^"•® ^^^ mentioned in the first and second para-
graphs of section eighty-six, and also
ordering that, in default of the defendant paying as
therein mentioned, the mortgaged property or a sufficient
part thereof be sold, and that the proceeds of the sale
(after defraying thereout the expenses of the sale) be
paid into court and applied in payment of what is so
found due to the plaintiff, and that the balance, if any, be
paid to the defendant or other persons entitled to receive
the same.

In a suit for foreclosure, if the plaintiff succeeds and
the mortgage is not a mortgage by condi-

eii^S'^nf mI ^^^^^^ ^*^®» ^^® ^°"^ °^^y» ^^ *^® instance
cloBiw^ffidt^ of the pkiintifi^ or of any person interested
either in the mortgage-money or in the
right of redemption, if it thinks fit, pass a like decree (in
lieu of a decree for foreclosure) on such terms as it thinks
fit, including, if it thinks fit, the deposit in court of a
reasonable sum, fixed by the court, to meet the expenses
of sale and to secure the performance of the terms*

Digitized by VjOOQIC



292 THE TRANSFER OF PROPERTY ACT. [SECS. 89-9I.

89. If in any case under section eighty-eight the de-
_ , - fendant pays to the plaintiff or into court
Procedure when on the day fixed as aforesaid the amount
amountdur^^ ^"^ ""^^^ ^^^ mortgage, the costs, if any,
awarded to him and such subsequent
costs as are mentioned in section ninety-four, the defend-
ant shall ( if necessary ) be put in possession of the

d b - mortgaged property ; but if such payment
lute for'sate ^^ ^°* ^° made, the plaintiff or the defend-
ant, as the case may be, may apply to
the Court for an order absolute for sale of the mortgaged
property, apd the Court shall then pass an order that
such property, or a sufficient part thereof, be sold, and
that the proceeds of the sale be dealt with as is mention-
ed in section eighty-eight; and thereupon the defendant's
right to redeem and the security shall both be extin-
guished.

90. When the nett proceeds of any
baW^YiS'on such sale are insufficient to pay the
toortffaffe amount due for the time being on the

^ ^ ■ mortgage, if the balance Is legally recover-

able from the defendant otherwise than out of the pro*
perty sold, the Court may pass a decree for such sum.

Redemption.

91. Besides the mortgagor, any of the
'WTio may su« following persons may redeem, or institute

for redemption, a suit for redemption of, the mortgaged
property :—

(a) any person (other than the mortgagee of the
Interest sought to be redeemed) having any interest
in or charge upon the property ;

{b) any person having any interest in, or charge upon,
the right to redeem the property ;

(c) any surety for the payment of the mortgage-
debt or any part thereof;

{d) the guardian of the property of a minor mort-
gagor on behalf of such minor ;

{e) the committee or other legal curator of a lunatic
01 idiot mortgagor on behalf of such lunatic or idiot ;

Digitized by VjOOQIC



SECS. 91-93.] tfiE TkAKSFER OF PROPERTY ACT. Tg^

(/) the judgment-creditor of the mortgagor, when
he has obtained execution by attachment of the mort-
gagor's interest in the property ;

(g) a creditor of the mortgagor who has, in a suit
for the administration of his^ estate, obtained a decree
for sale of the mortgaged property.

92. In a. suit for redemption, if the
Decree iB re- plaintiff succeeds, the Court shall pass a
demptionsmt. ^eeree ordering-

that an account be taken of what will be due to the
defendant for the nwrtgage-money and for his costs
of the suit, if any, awarded to him, on the day next
hereinafter referred to, or declaring the amount so due
at the date of such decree ;

that, upon the plaintiff paying to the defendant or
into court the amount so due on a day within six
months from the date of declaring in court the amount
so due, to be fixed by the Court, the defendant shall
deliver up to the plaintiff or to such person as be ap-
points, all documents in his possession or power relat-
ing to the mortgaged property, and shall retransfer
it to the plaintiff free from the nwrtgage and from
air incumbrances created by -the defendant- or any
person claiming under him, or, when the defendant
claims by derived title, by those under whom he claims,
and shall, if necessary, put the plaintiff into possession
of the mortgaged property ; and

that if such payment is not made on or before the
day to be fixed by the Court, the plaintiff shall (unless
the mortgage be simple or usufructuary) be absolutely
debarred of all right to redeem the property, or (unless
the mortgage be by conditional sale) that the property
be sold,

93. If payment is made of such amount and of
such subsequent costs as are mentioned

In case of re - jn section ninety-four, the plaintiff shall,
demption, pos- j^- necessary, be put into possession of
session. the mortgaged property. . .

Digitized by VjOOQIC



294 THE TRANSFER OF PROPERTY ACT. [SECS. 93-94.

If such payment is liot so made, the defendant may
(unless the mortgage is simple or usufnic-
In default, tuary) apply lo the Court for an order
foreclosure or that the plaintiff and all persons claiming
through or under him be debarred abso-
lutely of all right to redeem, or (unlesa the mortgage
is by conditional sale) for an order that the mortgaged
property be sold.

If he applies for the former order, tihe Court shall
pass an order that the plaintiff and all persons claim-
ing through or under him be absolutely debarred of
all right to redeeni the mortgaged property, and may,
if necessary, deliver possession of the propeity to the
defendant.

If he applies for the latter order, the Court shall pass
an order that such property or a sufficient part thereof
be sold, and that the proceeds of the sale (after defraying
thereout the expenses of the sale) be paid into court and
applied in payment of what is found due to the defend-
ant, and that the balance be paid to the plaintiff or
other persons entitled to receive the same.

On the passing of any ©rder under this section the
plaintiff's right to redeem and the security shall, as
regards the property affected by the order, both be
-extinguished :

Provided that the Court may, upon good cause shown,
and upon such terms, if any, as it thinfa

1 T' e ^^ ^^^^ **"^® *^ **"^® postpone the day

large tim . ^^^^ under section ninety-two for payment

to the defefndaiQt

^4. In finally adjusting the amount to be paid to a

o ^ f ^ mortgagee in case of a redemption or a

GortBof nwrt- g^le by the Court under this chapter, the

SSStodeow ^^"^' ^^^^^' ""^^^^ *^^^ conduct of the
^ ' mortgagee has been such as to disentitle

^im to costs, add to the mortgage-money such costs of
suit as have been properly incurred by him since the
decree for forecloiure, redemption or sale up to the time
of actual payment.



d by Google



SECS.95-97.] THE TRANSFER OF PROPERTY ACT, 295

95. Where one of several mortgagors redeems the
_, - mortgaged property and obtains posses*

of Sal T ^*'^" '^^"^^^^ ^^ ^^ * ^^^^^ ^^^^ s^^''®
mortgagors °^ ^^^^ of the other co-mortgagors in the
who redeems. Property for his proportion of the ex-
penses properly incurred in so redeeming
and obtaining possession.

Sale of Property subject to prior Mortgage.

96. In any property the sale of which is directed

under this chapter is subject to a prior
TH^rfv Rnhiecfto "^o^gage, the court may, with the consent
SLrmo/tffLe ^^ ^^^ P"^^ mortgagee, order that the
*^ ^ ^ ' property be sold free from the same, giving

to such prior mortgagee the same interest in the pro-
ceeds of the sale as he had in the property sold.

Application of 97- Such proceeds shall be brought
proceeds. into court and applied as follows : —

first, in payment of all expenses incident to the sale
or properly incurred in any attempted sale ;

secondly, if the property has been sold free from any
prior mortgage, in payment of whatever is due on
account of such mortgage ;

thirdly, in payment of all interest due on account of
the mortgage in consequence whereof the sale was
directed, and of the costs of the suit in which the decree
directing the sale was made ;

fourthly, in payment of the principal money due on
account of that mortgage ; and

lastly, the residue (if any) shall be paid to the person
proving himself to be interested in the property sold, ,
or, if there be more such persons than one, then 10 such
persons according to their respective interests therein oj:
upon their joint receipt.

Nothing in this section or in section ninety-six shall
be deemed to affect the powers conferred by section
fifty-seven.



d by Google



296 THE TRANSFER OF PKOPERTir ACT. [ SECSi^gST-roOL

Anomalous Mortgages,

9& In the case of a mortgage n<>t being a simple
ir.,f«.«^ «.♦ mortgage, a mortgage-by conditional sale,
d/tcH^dS ^" usufructuary mortgage or an English
■ ection 58 ">o*^&age, . or a combination of the first
clauses (b) Ic) ^"^ ^^*'*^» °^ *^* second and third, of such
id) and le) forms, the rights and liabilities of the

. '* parties shall be determined by their con-

tract as evidenced in the mortgage-deed, and, so far as-
such contract does not extend, by local usage.

Attachment of Mortgaged Property^

99. Where a mortgagee in execution of a decree for
, f f ^^® satisfaction of any claim, whether

m oVtT^ e e d ^^"^^^ ""^^^ ^^* mortgage or not, attaches
OToperty the mortgaged property, he shall not be

entitled to bring sueb property to sale
otherwise than by instituting a suit under section sixty-
seven, and he may institute such suit notwithstanding
anything contained in the Code of Civil Procedure,
Sectiod 43.

Charges^

100. Where immoveable property of one person is
TharffBa. ^^ ^^^ ^^ parties or operation of law made

^^ security for the paynaent of money to

another, and the transaction does not amount to a mort-
gage* the latter person is said to have a charge on the
property ; and all the provisions hereinbefore contained
as to a mortgagor shall,, so far as may be, apply to the
owner of such property, and the provisions of sections
eighty-one and eighty-two and all the provisions herein-
before contained as to a mortgagee instituting a suit for
the sale of the mortgage property shall, so far as may
be, apply to the person having such charge.

Nothing in this section applies to the charge of a
trustee on the trust-property for expenses properly in-
curred in the execution of his trust

Digitized by VjOOQIC



SECS. 161-103.] THE TRANSFER OF PROPERTY ACT. 297

loi- Where the owner of a charge or other incum-
. brance on immoveable property is or

e t f^^ becomes absolutely entitled to that pro-
m MO c arges. ^^^y^ ^]^ charge or incumbrance shall
be extinguished, unless he declares, by express words^
or necessary implication, that it shall continue to subsist,
or such continuance would be for his benefit.

Notice and Tender,

102. Where the person on or to whom any notice
or tender is to be served or made under
Service or ^j^jg chapter does not reside in the district
aSir ^^ °^ ^" which the mortgaged property or some
^ ' part thereof is situate, service or tender

on or to an agent holding a general power-of-attorney
from such person or otherwise duly authorized to accept
such service or tender shall be deemed sufficient.

Where the person or agent on whom such notice
should be served cannot be found in the said district,
or is unknown to the person required to serve the notice,
the latter person may apply to any Court in which a
suit might be brought for redemption of the mortgaged
property, and such Court shall direct in what manner
such notice shall be served, and any notice served
in compliance with such direction shall be deemed
sufficierit.

Where the person or agent to whom such tender
should be made cannot be found within the said district^
or is unknown to the person desiring to make the tender,
the latter person may deposit in such court as last
aforesaid the amount sought to be tendered, and such
deposit shall have the effect of a tender of such amount.

103, Where, under the provisions of this chapter, a
notice is to be served on or by, or a
€r by Tjersott ^^^^^^ ^^ deposit made or accepted or
inconietelt to taken out of court by, any person incom-
contract. petent to contract, such notice may be

served, or tender or deposit made, ac-
cepted or taken, by the legal curator of the property of
such person ; but where there is no such curator, and it

Digitized by Google



398 THE TRANSFER OF PROPERTY ACT. [SECS. 1 03- IO5

is requisite or desirable in the interests of such person
that a notice should be served or a tender or deposit made
under the provisions of this chapter, application may
be' made to any Court in which a suit might be brought
for the redemption of the mortgage to appoint a
^ardian ad litem for the purpose of serving or receiv-
ing service of such notice, or making or accepting
such tender, or making or taking out of court such
deposit, and for the performance of all consequential acts
iivhich could or ought to be done by such person if
he were competent to contract ; and the provisions
of Chapter XXXI of the Code of Civil Procedure
shall, so far as may be, apply to such application and
to the parties thereto and to the guardian appointed
thereuiMier.

104. The High Court may, from time to time, make

_, , - rules consistent with this Act for carrying

^wertomake ^^^ j^ itself and in the Courts of Civil

'^ ®** Judicature subject to its superintendence,

the provisions contained in this chapter.



CHAPTER V.

Of Leases of Immoveable Property.

105. A lease of immoveable property is a transfer of
a right to enjoy such property, made for
Lease defined. ^ certcun 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.

The transferor is called the lessor, the
Lessor, lessee, transferee is called the lessee, the price

share, service or other thipg to be so
rendered is called the rent.



d by Google



SECS. 106-108.] THE TRANSFER OF PROPERTY ACT. 299

106. In the absence of a contract or local law or

usage to the contrary, a lease of immove-
I)uration of ^^i^j^ property for agricultural or manufac-
^aSein»*'S turing purposes shall be deemed to be a
written con- ^^^^ ""^"^ y®^*" ^ V^^^^ terminable, on
tract or local t^e part of either lessor or lessee, by
usage. six months' notice expiring with the end

of a year of the tenancy ; and a lease of
immoveable property for any other purpose shall be
deemed to be a lease from month to month, terminable,
on the part of either lessor or lessee, by fifteen days'
notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing,
signed by or on behalf of the person giving it, and ten-
dered or delivered either personally to the party who is
intended to be bound by it, 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. A lease of immoveable property from year to

year, or for any term exceeding one year,
Leases now ^^ reserving a yearly rent, can be made
^^^' only by a registered instrument.

All other leases of immoveable property may be made
either by an instrument or by oral agreement.

108. In the absence of a contract or local usage to

the contrary, the lessor and the lessee of
,. , ??5 «i immoveable property, as against one an-
li?i^d1e^e''^ °^^^^' respectively, possess the rights and

are subject to the liabilities mentioned in
the rules next following, or such of them as are appli-
cable to the property leased : —

i4. — 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 in-
tended use, of which the former is and the latter is not
aware, and which the latter could not with ordinary care
discover :



d by Google



300 THE TRANSFER OF PROPERTY ACT. [sEC. Id8.

(5) the lessor is bound oil the lessee's request tO'
put him iti possession of the property :

{c) the lessor shall be deeined 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 cotttract shall be annexed to and
• go with the lessee's interest as such, and may be enforc-
ed by every person in whom that interest is for the
whole or any jxirt thereof from time to time vested.

B^ — Rights and Ltahilities of the Lessee *

(d) If during the continuance of the lease any acces-
sion 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 sub-
stantially and permanently unfit for the purposes for
which it was let, the lease shall, at the option of the
lessee, be void :

Provided that, if the injury be occasioned by the
wrongful act or default of the lessee, he shall not be en-
titled to avail himself of the benefit of this provision :

(/) if the lessor neglects to make, within a reason-
able 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 in-
terest from the rent, or otherwise recover it from the
lessor :

(^) 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 :



d by Google



SBC. Io8.] THE TRANSFER OF PROPERTY ACT. 30I

(h) the lessee may remove, at any time during the
continuance of the lease, all things which he has at-
tached to the earth : provided he leaves the property in
the state in which he received it :

(f) when a lease of uncertain duration determines by
any means except the fault of the lessee, he or his legal
representative is entitled to all the crops planted or sown
by the lessee and growing upon the property when the
lease determines, and to free ingress and egress to gather
and carry them :

(J) the lessee may transfer absolutely or by way of
mortgage or sub-lease the whole or any part of his
interest in the property, and any transferee of such
interest or part may again transfer it. The lessee shall
not, by reason only of such transfer, cease to be subject
to any of the liabilities attaching to the lease :

nothing in this clause shall be deemed to authorize a
tenant having an 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 :

(/) 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 termi-
nation 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 reason-
able wear atid 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 ha§ been caused

Digitized by VjOOQIC



302 THE TRANSFER OF PROPERTY ACT. [SECS. I08-IO9.

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:

(«) 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 timber, pull down or
damage buildings, work mines or quarries not open when
the lease was granted, or commit any other act which is
destructive or permanently injurious thereto :

(/») 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. If the lessor transfers the property leased, or
_ any part thereof, or any part of his interest

BoSa^S" '^^'■^^"' ^^^ transferee, in the absence of
Borswansieree. 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.

Digitized by VjOOQIC



SECS. 109- 1 1 1.] THE TRANSFER OF PROPEHTY ACT. JOJ

The lessor, the transferee and the lessee may de-
termine what ptoportion of the premium or rent reserved
by the lease is payable in respect of the part so transfer-
red, 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.

no. Where the time limited by a lease of im-
Exclusion of moveable property is expressed as com-
day on whicli mencing from a particular day, in com-
t e r m com- pating that time such day shall be exolud-
Bttnoes. ed. Where no day of commencement

is named, the time so limited begins from the making
of the lease.

Where the time so limited is a year or a number



Online LibraryIndiaThe pocket Evidence act: containing also the Contract act, the Sepcific ... → online text (page 24 of 58)