Transfer of Property

Principal

1. Ownership v. possession of property ; de facto – in reality de jure- by right

2. Absolute control over property
3. Derivative right
4. Right to exclude other from property
5. Right of transfer of sell property

Historical Theory of topa

1. Labour theory
2. Phycological theory
3. Functional theory
4. Philosophical theory
5. Natural theory

THEORY OF PROPERTY

Natural law- originally things without owner, naturally once you go to some land and occupied it,
hence stated as naturally occupied , hence called natural theory. No one as an individual owns any
land but once you occupied it, it is stated as your property

Fighting for your own right, freedon, etc is called fighting for your natural law, by benthon

Labour theory – herbour spenstor ; you brining up into existence, limitation –

Metaphysical theory – states a thing is claim to be mine and it is so connected that any one who uses
that property without the consent will let me injury. This essential is also known as objective
realisation of personality. This objective personality which states that I am excising my will of the
property, how to show I am excising ? – yo use it or throw it.

Limitation –

Historical theory – by benthon supported by Hendry. The concept of private property has grown
slowly and gradually and it is a collective or join property and that later broke down into family.
There are many stages for owning. First stage is of natural possession. Second stage juristic
possession. (this possession is 9% possession) 3rd is the ownership right.

Sociological school – that property should not be looked as private property but it should have
looked as social property, cause it should not harm in general to the society, it look as a socially. This
theory main objective is not to harm any other property.

Phycological theory- benthon ; typically stating the of concept of mind, desire to a man to own.
Property is itself is a concept of mind, but not in modern days cause of specific demand,
demarcation of gov.

Property creation of state- land basis some money, property given by government.
 ACQUSITION AND TRANSFER OF PROPERTY

- Inheritance
- Agreement
- Prescription – longer time of possession without allegation may lead upto owning the
possession to the person,
Two types of prescription – negative : possitve

Negative prescription Positive prescription

Perfect -ve is said proper distuction
Imperfect -ve right where rights is not
destroyed but your claim is destry
Eg;

- Possession
- Section 3 interpretation clause-

Components of sec 3

1. Land – upon the surface such as sand, mud,etc

Case law – v Pakrutin haji v state bank of India AIR 2009 ker.78

Cs – wakke v halt 1883 8app.cas.194

Object or purpose of the annexation – it is the intension of movable object,

2. Instruments – any legal document. Written legal form of document eg: a will
3. Attested – a person who is signing a doc, a person who bare the vitness and the person who
can give witness in the court is called attested.
Objectes of Attested
- Authentication
- Ensure that the witness is not under any undue influence , coercion
- Who can attested? – at least 2 people of sound mind and above 18 years of age.

- when a legal document or instrument is described as "attested," it means that

it has been witnessed by two or more people. These witnesses must have
observed the person who created the document (the executant) signing it or
putting their mark on it. Alternatively, the witnesses could have seen another
person signing the document under the direction of the executant. They
might also have received a confirmation directly from the executant about
their signature or the signature of the other person.
- It's important to note that these witnesses don't have to be present
simultaneously, and there's no specific format required for the witnessing
process. The key is that multiple witnesses have observed the signing or
received confirmation from the person involved in creating the document.
case law – kashi nath v dharamdas AIR 1959 cal.243
 Appointment

36. Apportionment of periodical payments determination of interest of person entitled. —

Certainly! This statement basically means that if someone is supposed to receive regular
payments like rent, pensions, or dividends, and they sell or transfer their right to receive those
payments to someone else, then the payments are considered to belong to both the original
person and the new person based on the time of the transfer.
So, if the transfer happens partway through a payment period, the original person gets paid
for the portion of the period they owned the right to, and the new person gets paid for the rest
of the period. However, the actual payment will still happen on the scheduled dates as before.
37. Apportionment of benefit of obligation on severance- This statement is talking about what
happens when property is divided among multiple owners, and there are obligations related to
that property.
If the obligation can be divided and doesn't become much harder to fulfill by dividing it, then
each owner is responsible for their share of the obligation based on the value of their portion
of the property.
But if the obligation can't be divided or dividing it would make it significantly harder to
fulfill, then the owners can choose one person to handle the obligation for all of them.
However, the person responsible for fulfilling the obligation isn't held accountable unless
they're given reasonable notice of the division of responsibility.
This rule doesn't apply to agricultural leases unless the government says it does through an
official announcement.
Illustrations- In this scenario, A sells a house to B, C, and D, and the house is leased to E for
an annual rent of Rs. 30 and the delivery of one fat sheep. Since B provided half of the
money for the purchase, and C and D each provided one quarter, they have different shares in
the ownership of the house. So, E, who is leasing the house, must pay Rs. 15 to B, Rs. 7.5 to
C, and Rs. 7.5 to D, based on their respective shares. Additionally, E must deliver the sheep
according to the instructions given jointly by B, C, and D, as they are co-owners of the
property.
2. In this case, each house in the village has to do ten days of work each year on a dyke to
prevent flooding. As part of E's lease agreement with A, E agreed to do this work for A. Now,
B, C, and D each own a share of the house that E is leasing. They individually ask E to do the
ten days of work that are due for their respective shares of the house. But E is only obligated
to do a total of ten days of work in all, not more. This means that regardless of how many
owners ask, E only needs to do ten days of work altogether. And E will follow the directions
given jointly by B, C, and D for when and how to do this work.
(B) Transfer of Immovable property
38. Transfer by person authorised only under certain circumstances to transfer.- This
statement deals with situations where someone is allowed to sell property only under certain
changing conditions.
If they sell the property claiming these conditions exist, then: If the buyer (transferee) checks
to see if these conditions really exist and believes the seller acted honestly, they're protected.
But if it turns out the conditions didn't actually exist, and the buyer did their best to check,
they're still protected. So basically, if the buyer checks carefully and believes the seller acted
honestly, they're safe even if the conditions turn out to be different.
Illustration - In this scenario, A, a Hindu widow, decides to sell a field from her property
because she believes the income from her property isn't enough for her needs, and this
decision isn't driven by religious or charitable reasons. A sells the field to B. B, before buying
the field, checks if A truly needs to sell it for her maintenance. He does this by making
reasonable inquiries. If B believes, in good faith, that the sale is necessary for A's
maintenance based on his investigation, then it's considered that there was indeed a necessity
for the sale. So, if B acts honestly and reasonably believes that A needs to sell the field for her
support, then legally, it's accepted that there was indeed a necessity for the sale.
39. Transfer where third person is entitled to maintenance.— This statement explains the
rights of a third person who is entitled to receive support, a share for advancement, or a
provision for marriage from the income of property. If this property is transferred to someone
else, the third person can enforce their right against the new owner if:
1. The new owner knew about the third person's right, or
2. The transfer of the property was free (without payment).
However, if the new owner bought the property for a price and didn't know about the third
person's right, then the third person can't enforce their right against the new owner or the
property in their possession.
40. Burden of obligation imposing restriction on use of land.— This statement addresses a
situation where a person has a right to restrict how another person uses their property in a
specific way, but not because they have any direct ownership or easement over that property.
For example, if someone's property is affected negatively by how their neighbor uses their
property, the affected person might have a right to prevent the neighbor from using their
property in a way that causes harm or inconvenience, even though they don't own or have any
official claim over the neighbor's property.
or of obligation annexed to ownership but not amounting to interest or easement.— This
statement discusses a situation where a third person has a right to benefit from an obligation
related to a piece of property but doesn't have actual ownership or any easement (a right to
use the property). If the property is transferred to someone else, the third person can enforce
their right or obligation against:
- The new owner if they knew about it, or
- Someone who received the property for free (without payment), even if they didn't know
about it.
However, if the new owner bought the property for a price and didn't know about the third
person's right or obligation, then the third person can't enforce it against the new owner or the
property in their possession.
Illustration- In this scenario, A agrees to sell Sultanpur to B. However, before the deal is
finalized, A sells Sultanpur to C. Importantly, C is aware of the contract between A and B.

According to the statement, even though A sold Sultanpur to C, B still has the right to enforce
the original contract against C to the same extent as they could against A. This means that B
can hold C accountable for fulfilling the terms of the contract, just as if C were A. So, B's
rights under the contract with A are still valid and enforceable against C.
41. Transfer by ostensible owner.— This statement addresses a situation where someone
appears to be the owner of a piece of property with the consent of those who actually have an
interest in it. If this person sells the property for a price, the sale cannot be disputed on the
grounds that the seller didn't have the authority to make the transfer.
However, there are conditions to this rule:
- The buyer must have made reasonable efforts to confirm that the seller had the right to make
the transfer.
- The buyer must have acted honestly and in good faith.
In simpler terms, if someone looks like they own a property with the agreement of the real
owners, and they sell it, the sale is valid if the buyer checked that everything was okay and
acted honestly.
42. Transfer by person having authority to revoke former transfer.— This statement deals
with situations where someone transfers a piece of property to another person but reserves the
right to cancel or revoke that transfer later on. If the original owner then sells the property to
someone else for a price, that second transfer cancels out the first one to the extent of the
power to revoke that was reserved. In simpler terms, if someone gives property to one person
but keeps the right to take it back, and then sells it to someone else, the second buyer gets the
property as if the first transfer never happened, to the extent allowed by the original
reservation.
Illustration- In this scenario, A rents a house to B but keeps the right to cancel the lease if a
specified surveyor believes that B's use of the house is harming its value. Later on, A believes
that B is indeed using the house in a way that harms its value and decides to rent it to C
instead. The statement means that A's decision to rent the house to C effectively cancels B's
lease, but it's subject to the opinion of the surveyor regarding whether B's use of the house
was indeed detrimental to its value. So, if the surveyor agrees with A's assessment, then B's
lease is revoked, but if not, B's lease remains valid.
43. Transfer by unauthorised person who subsequently acquires interest in property
transferred.— This statement deals with situations where someone falsely claims they have
the authority to sell a specific property and sells it to another person for a price. If this
happens, the buyer has the choice to make the transfer valid if the seller ever actually
acquires ownership of the property during the time when the sale agreement is still in effect.
However, this rule doesn't affect the rights of buyers who honestly purchased the property for
a price without knowing about this option. So, if someone bought the property in good faith
without knowing about the false representation, their rights are protected.
Illustration- In this scenario, A, who is a Hindu separated from his father B, sells three fields
(X, Y, and Z) to C, claiming that he has the authority to transfer them. However, one of these
fields, Z, doesn't actually belong to A because it was retained by B during their partition.
Later on, B passes away, and A, as B's heir, inherits field Z. According to the statement,
because C hasn't canceled the contract of sale, they have the right to demand that A delivers
field Z to them. This is because when A inherited field Z from B, it became rightfully A's
property, and C, as the buyer, still has the right to receive it as per their agreement.
44. Transfer by one co-owner.— This section addresses the situation where one co-owner of a
property legally transfers their share or interest in that property to someone else.
When this happens, the person receiving the share or interest gains the right to:
- Joint possession or other shared enjoyment of the property, to the extent necessary to fulfill
the transfer.
- Request a partition of the property if needed, which means dividing the property between
co-owners, However, these rights are subject to any existing conditions or liabilities affecting
the share or interest at the time of the transfer. However, there's an exception for dwelling-
houses belonging to an undivided family. If a non-family member receives a share of such a
house, they don't automatically gain the right to joint possession or shared enjoyment of the
house under this section.
45. Joint transfer for consideration.— This statement outlines the distribution of interests in
property when it's transferred to two or more people for a price.
1. If the payment for the property comes from a fund that belongs to all of them jointly, and
there's no specific agreement saying otherwise, then they each get shares in the property that
match their shares in the fund.
2. If each person pays for their share of the property from their own separate funds, then, in
the absence of any agreement saying otherwise, they each get shares in the property based on
the proportion of the price they individually paid.
3. If there's no evidence about how much each person contributed to the fund or property,
then it's presumed that they all have equal shares in the property.
46. Transfer for consideration by persons having distinct interests.— This statement
addresses the situation where property is sold by individuals who have different ownership
interests in it.
1. If these individuals have equal interests in the property and there's no agreement stating
otherwise, they're entitled to share the sale proceeds equally.
2. If their interests in the property are of different values, they're entitled to share the proceeds
proportionately based on the value of their respective interests. So, the distribution of the sale
proceeds depends on the relative values of the interests each person had in the property.
Illustration- In this scenario:
- A owns half (moiety) of mauza Sultanpur.
- B and C each own a quarter share of mauza Sultanpur.
They exchange:
- An eighth share of mauza Sultanpur owned by A for
- A quarter share of mauza Lalpura. Since there's no agreement stating otherwise, here
47. Transfer by co-owners of share in common property.— This statement means that when
multiple owners of a property jointly sell a part of that property, and they don't specify which
part each one is selling, the sale is considered to affect their shares equally if they all owned
an equal part.

For example, if three people own a property equally and they sell a part of it without
specifying whose part it is, then the sale is assumed to affect each person's share equally. If
their shares were unequal, then the sale affects their shares proportionately based on the
extent of each person's ownership. So, if one person owned half of the property and another
owned a quarter, the sale would affect the larger share more than the smaller one.
Illustration - In this scenario:
- A owns an eight-anna share in mauza Sultanpur.
- B and C each own a four-anna share in mauza Sultanpur. They transfer a two-anna share in
mauza Sultanpur to D, but they don't specify which part of their shares the transfer is coming
from. To make the transfer work:
- 1 anna is taken from A's share.
- Half an anna is taken from each of B and C's shares.
So, the transfer effectively affects:
- A's share by 1 anna.
- B and C's shares by half an anna each.
48. Priority of rights created by transfer- This statement means that if someone tries to give
away different rights to the same piece of property at different times, but those rights can't all
exist or be used fully at the same time, then the later rights are limited by the rights that were
already given away before. For example, if someone sells the right to build a house on a piece
of land to one person, and then later sells the land itself to another person, the second buyer
can't build on the land because that right was already given away to the first buyer. In
simpler terms, if there's a conflict between rights given to different people at different times,
the rights given earlier take precedence over the rights given later, unless there's a special
agreement saying otherwise.
49. Transferee’s right under policy.— This statement means that if someone buys property
and it's insured against fire damage at the time of the purchase, and then there's a fire that
damages the property, the buyer can ask the seller to use any money received from the
insurance to repair or rebuild the damaged property. In other words, if the property is
damaged by fire and the seller gets money from the insurance company, the buyer can ask the
seller to use that money to fix or rebuild the property, unless there's a special agreement
saying otherwise.
50. Rent bona fide paid to holder under defective title- This statement says that if someone
pays rent or gives profits from property to someone they believed had the right to receive
them, they can't be held responsible for those payments later on, even if it turns out the
person didn't actually have the right to receive them. In simpler terms, if you pay rent to
someone you think owns the property, and later find out they didn't own it, you're not
responsible for the money you already paid them.
Illustration - This situation involves A letting a field to B and then selling the field to C. B,
who rented the field from A, doesn't know about the sale and continues to pay rent to A,
believing A still owns the field. In simple terms, B is not responsible for the rent they paid to
A because they didn't know about the sale to C. They paid the rent in good faith to the person
they thought was the owner, so they shouldn't be held accountable for it.

51. Improvements made by bona fide holders under defective titles.— In simpler terms, if
someone buys property and makes improvements to it, believing they own it fully, but then
gets kicked off the property by someone with a better claim to it, they have certain rights
Firstly, they can demand that the person who evicted them either pays them for the value of
the improvements they made, or sells their own interest in the property to the buyer at the
current market value, regardless of the value of the improvements. Secondly, if the buyer
planted crops on the property and they're still growing when they get evicted, they have the
right to harvest and take those crops, and they must be allowed to enter and leave the property
freely to do so.
52. Transfer of property pending suit relating thereto.— This section says that when there's a
court case involving property rights, no one involved in the case can transfer or do anything
with the property that would affect the rights of the other parties, unless the court gives
permission. For example, if there's a dispute over who owns a house, and the case is in court,
neither the plaintiff nor the defendant can sell or make any changes to the house without the
court's approval. This is to make sure that the rights of all parties involved in the case are
protected until the court makes a final decision. The section also explains that the court case
is considered to start from the date the lawsuit is filed and continues until there's a final
decision from the court and any judgments or orders are settled or can no longer be enforced
due to the expiration of the time limit.
8 [53. Fraudulent transfer.— This section outlines the consequences of certain transfers of
property:

1. If someone transfers property with the intention of avoiding or delaying their creditors, any
creditor who is affected by this can choose to challenge or void the transfer. However, if
someone acquires the property in good faith and for a price, their rights are still protected.
Additionally, this provision doesn't affect any laws related to insolvency.
2. If someone transfers property without receiving anything in return, with the intention of
cheating a subsequent buyer, that transfer can also be challenged by the cheated buyer.
However, if a transfer is made without receiving anything in return, it's not automatically
considered fraudulent just because a later transfer for a price is made.
[53A. Part performance.— This section lays out the conditions under which a person who
agrees to sell property but hasn't completed the transfer according to the law can still be
prevented from taking back the property from the buyer:

1. If someone agrees to sell property in writing, and the terms of the sale are clear enough,
and the buyer either takes possession of the property or continues to stay there and takes steps
towards completing the sale, and is ready to fulfill their part of the agreement, then:
2. Even if the transfer hasn't been formally completed according to the usual legal process,
the seller or anyone claiming rights from them cannot take back the property from the buyer
or anyone connected to the buyer, except for rights specifically mentioned in the contract.
However:3. If someone buys the property without knowing about this agreement or the steps
taken towards completing it, their rights as a buyer for payment are still protected.

CHAPTER III OF SALES OF IMMOVEABLE PROPERTY

54. “Sale” defined.— This excerpt defines what a "sale" is and how it is executed:

1. **Definition of Sale**: A sale is when ownership of something is transferred to someone

else in exchange for payment, either immediately or with a promise to pay later, either fully
or partially.

2. **How Sale is Made**:

- For tangible immovable property (like land or buildings) valued at 100 rupees or more, or
for intangible things like a reversion (return of ownership after a certain period), the sale must
be made through a registered document.
- For tangible immovable property valued at less than 100 rupees, the sale can be made
either through a registered document or by physically delivering the property to the buyer.
3. **Delivery in Tangible Immovable Property**: In the case of tangible immovable
property, delivery occurs when the seller physically gives possession of the property to the
buyer or someone the buyer specifies.
Contract for sale.— This excerpt explains what a contract for the sale of immovable property
is:1. **Definition of Contract for Sale**: It's an agreement between parties stating that a sale
of immovable property will happen based on terms they've agreed upon.
2. **Nature of the Contract**: This type of contract doesn't automatically give anyone
ownership or any rights over the property. It's just an agreement that outlines the terms under
which the sale will happen.
In simpler terms, it's like making a plan to sell a house without actually transferring
ownership or creating any legal rights over the property.

CHAPTER IV
OF MORTGAGES OF IMMOVEABLE PROPERTY AND
CHARGES
58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.—
This excerpt defines what a mortgage is:

1. **Definition of Mortgage**: A mortgage is when someone transfers their interest in a specific

piece of property to someone else as security for a loan they've received or will receive in the future,
or for fulfilling a financial obligation they have.

Parties Involved**: The person transferring the property is called the mortgagor, and the person
receiving the property as security is called the mortgagee.

3. **Purpose**: The purpose of the mortgage is to ensure that the money borrowed is repaid, along
with any interest, or to ensure the fulfillment of a financial obligation.

4. **Key Terms**: The money borrowed and any interest owed on it is called the mortgage-money,
and the document that outlines the transfer of property for this purpose is called a mortgage-deed.

In simpler terms, a mortgage is when you give someone else ownership of your property temporarily
to ensure you pay back a loan or fulfill a financial obligation.

(b) Simple mortgage.— In simple terms, a simple mortgage is when someone borrows money and
agrees to pay it back personally, but also agrees that if they can't repay, the lender can sell their
property to get their money back. Here's how it works:

- The borrower doesn't give the lender possession of the property but promises to repay the loan.

- However, if the borrower can't repay the loan as promised, the lender has the right to sell the
property to recover the money owed. So, in a simple mortgage, the lender has the security of the
property to ensure they get their money back if the borrower fails to repay the loan.

(c) Mortgage by conditional sale.— A mortgage by conditional sale is when the owner of a property
appears to sell it to someone else, but with certain conditions attached:

1. If the buyer defaults on paying the loan by a specific date, the sale becomes final, and the property
is transferred to the buyer permanently.

2. If the buyer pays the loan on time, the sale becomes void, and the property remains with the
original owner.

3. If the buyer pays the loan on time, the buyer is required to transfer the property back to the
original owner. The person receiving the property as security in these situations is called a mortgagee
by conditional sale. However, it's important to note that for a transaction to be considered a
mortgage by conditional sale, the conditions must be clearly stated in the document that shows the
sale.

(d) Usufructuary mortgage.— In simple terms, an usufructuary mortgage is when the owner of a
property gives possession of the property to the lender (mortgagee) and allows them to keep
possession until the loan is repaid.

Here's how it works:

- The property owner gives the property to the lender and lets them keep possession until the loan is
fully paid off.

- The lender is allowed to collect and keep the rental income or profits generated by the property as
payment for the loan or as interest on the loan.

- This arrangement is called an usufructuary mortgage, and the lender is called an usufructuary
mortgagee.

(e) English mortgage.— In simpler terms, an English mortgage is when the borrower agrees to repay
the loan by a specific date and transfers the property to the lender as security. However, there's a
condition attached: once the borrower repays the loan as agreed, the lender must transfer the
property back to the borrower.

So, in an English mortgage:

- The borrower promises to repay the loan by a certain date.

- The borrower transfers ownership of the property to the lender as security for the loan.

- However, there's a provision stating that once the loan is repaid, the lender must transfer the
property back to the borrower.

1 [(f) Mortgage by deposit of title-deeds.— In simpler terms, a mortgage by deposit of title-deeds

happens when someone in certain specified towns (like Calcutta, Madras, and Bombay) or in other
towns specified by the State Government, gives documents showing ownership of property to a
creditor or their representative. This is done with the intention of using the property as security for a
loan or debt.

(g) Anomalous mortgage.— In simpler terms, any mortgage that doesn't fit into the categories of
simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, or
mortgage by deposit of title-deeds is called an anomalous mortgage. It's basically a catch-all term for
any other type of mortgage that doesn't fall into those specific categories.

59. Mortgage when to be by assurance.- In simple terms, this section explains how mortgages are
created:

1. For mortgages where the loan amount is 100 rupees or more (excluding mortgages by deposit of
title-deeds), they must be created using a registered document signed by the borrower (mortgagor)
and witnessed by at least two people.
2. For mortgages where the loan amount is less than 100 rupees, they can be created either by a
registered document signed and witnessed as described above or by physically handing over the
property (except for simple mortgages).

Additionally, there's a note that says references to mortgagors (borrowers) and mortgagees (lenders)
in this chapter also include people who get their ownership from them, unless stated otherwise.

Rights and Liabilities of Mortgagor

60. Right of mortgagor to redeem.— In simple terms, this section outlines the rights of the borrower
(mortgagor) in a mortgage:

1. After the principal loan amount becomes due, the borrower has the right to:

a. Obtain all documents related to the mortgage from the lender (mortgagee).

b. If the lender has possession of the property, get the property back.

c. Ask the lender to transfer the property back to them or to a third person, or to acknowledge in
writing (especially if the mortgage was registered) that any rights transferred to the lender have been
canceled.

2. This right, known as the "right to redeem," can be enforced through a legal action called a "suit for
redemption."

3. However, if the mortgage agreement includes a provision stating that the lender should be given
reasonable notice before the borrower pays back the loan, such provision is not invalidated by this
section.

Redemption of portion of mortgaged property.— In simpler terms, this section states that if
someone owns only a portion of the property that's being mortgaged, they can't redeem just their
share of the property by paying a proportionate part of the remaining loan amount. However,
there's an exception: If the lender(s) (mortgagee(s)) have acquired the ownership of the borrower's
share of the property, either fully or partially, then the person owning a share can redeem it by
paying their proportionate part of the remaining loan amount.

2 [60A. Obligation to transfer to third party instead of re-transference to mortgagor.— In simpler

terms, this section outlines the rights of the borrower (mortgagor) regarding redemption and
transfer of the mortgage:

1. If the borrower has the right to redeem the property and fulfills any conditions necessary for re-
transfer, they can request the lender (mortgagee) to assign the mortgage debt and transfer the
property to a third person chosen by the borrower instead of transferring it back to the borrower.
The lender is obligated to comply with this request.

2. These rights can be exercised by the borrower or any other party with a claim on the property,
even if there are other existing claims on the property. However, if there are multiple claims, the
request of a party with a prior claim takes precedence over those with subsequent claims.

3. These provisions don't apply if the lender has been or is currently in possession of the property.
60B. Right to inspection and production of documents.— In simple terms, as long as the borrower
(mortgagor) still has the right to reclaim their property, they have the right to:

- Ask the lender (mortgagee) to let them inspect and make copies of any documents related to the
property.

- The borrower must cover the costs for this request.

- They also need to pay for any expenses the lender incurs in facilitating this process. Basically, it
means the borrower can check and get copies of documents about the property held by the lender,
as long as they cover the expenses involved.

3 [61. Right to redeem separately or simultaneously.— In simpler terms, if a borrower has given the
same lender (mortgagee) two or more mortgages, they have the right to:

- Choose to redeem any one of those mortgages separately, or

- Decide to redeem two or more of those mortgages together, if they wish.

This means they can pay off the loan for one mortgage at a time, or they can combine and pay off
multiple mortgages simultaneously, unless there's a different agreement in place.

62. Right of usufructuary mortgagor to recover possession.— In simple terms, if someone has given
their property as security for a loan (usufructuary mortgage) and the lender (mortgagee) has the
right to collect the loan amount from the property's income:

The borrower (mortgagor) can take back possession of the property along with any related
documents from the lender:

a) When the lender has collected the entire loan amount from the property's income and it has
been paid.

b) When the lender has collected only a part of the loan amount from the property's income, and
the agreed-upon time for full repayment has passed, and the borrower either pays the remaining
loan amount or deposits it in court as specified.

63. Accession to mortgaged property.— In simple words, if the property that's been used as security
for a loan (mortgaged property) has gained any additions or improvements while it's in the
possession of the lender (mortgagee), then when the borrower (mortgagor) pays off the loan and
reclaims the property, they have the right to those additions or improvements. This is the case unless
there's an agreement stating otherwise.

Accession acquired in virtue of transferred ownership.— In simpler terms, if any improvements or

additions are made to the property while it's in the possession of the lender (mortgagee), and these
improvements can be separated from the main property without causing any harm, the borrower
(mortgagor) can choose to take them but must pay the lender for the cost of these improvements. If
the improvements cannot be separated from the main property without causing damage, then they
must be given back with the property when the borrower redeems it. In this case:

- If the improvements were necessary to protect the property from damage or were made with the
borrower's agreement, the borrower must pay for them along with the loan amount and interest.

- Any profits earned from these improvements go to the borrower. If the mortgage is a usufructuary
mortgage (where the lender collects income from the property), and the improvements were paid
for by the lender, any profits earned from these improvements will be deducted from any interest
owed by the borrower.

[63A. Improvements to mortgaged property - In simpler terms, if the property being held by the
lender (mortgagee) as security for a loan has been improved while in their possession, the borrower
(mortgagor) has the right to these improvements when they pay off the loan and reclaim the
property. The borrower usually won't have to pay for these improvements unless:

1. The improvements were necessary to protect the property from damage or to maintain its value.

2. The improvements were made because of a legal requirement or order from a government
authority. In these cases, the borrower needs to pay for the cost of the improvements, along with the
loan amount and interest. Any profits made from these improvements will go to the borrower.

64. Renewal of mortgaged lease.— If the property that was used as security for a loan is a lease, and
the lender (mortgagee) manages to renew that lease during the mortgage period, the borrower
(mortgagor) will get the advantage of the new lease when they pay off the loan and take back the
property. This means they'll benefit from the terms and conditions of the renewed lease.

65. Implied contracts by mortgagor.— In the absence of a different agreement, the borrower
(mortgagor) agrees with the lender (mortgagee) in several ways:

(a) The borrower assures that the interest they're transferring to the lender exists and that they have
the authority to transfer it.

(b) The borrower promises to defend their ownership of the property, or if the lender is already in
possession, help defend the title.

(c) The borrower agrees to pay all public charges related to the property as long as the lender is not
in possession.

(d) If the property is leased, the borrower ensures that all rent, lease conditions, and obligations have
been met up to the start of the mortgage. They also agree to continue paying rent and meeting lease
conditions while the mortgage is active.

(e) If the mortgage is not the first one on the property, the borrower pledges to pay the interest and
repay the principal on any prior mortgages when they become due. These agreements benefit the
lender and are attached to their interest in the property. Anyone who holds that interest can enforce
these agreements.

2 [65A. Mortgagor’s power to lease.— This section outlines the rules regarding the ability of a
property owner (mortgagor) to lease out their property while they still possess it under a mortgage:

1. The property owner can lease out the property as long as they are lawfully in possession, and
these leases will be binding on the mortgage lender (mortgagee).

2. The leases must meet certain conditions:

(a) They must be typical for managing the property and comply with any local laws or customs.

(b) They should set a reasonable rent without any upfront payment or promise of extra money.

(c) They cannot include a promise for lease renewal.

(d) They should start within six months from the lease agreement date.
 (e) If the lease is for buildings, it can't exceed three years, must include a rent payment agreement,
and allow for re-entry if rent is not paid within a specified time.

3. These rules apply unless the mortgage agreement specifically states otherwise. The mortgage
agreement can also modify or expand these rules, and any changes made in the agreement will have
similar legal effects as those outlined in this section.

66. Waste by mortgagor in possession - This section explains that a property owner (mortgagor) who
is in possession of the mortgaged property is not held responsible to the mortgage lender
(mortgagee) for any deterioration in the property's condition. However, the mortgagor must avoid
any actions that could cause permanent damage to the property, especially if these actions would
make the security for the mortgage insufficient Here, "insufficient security" means that the value of
the property is not enough to cover the amount owed on the mortgage. Specifically, the property's
value must be at least one-third more than the mortgage amount, or if it's buildings, the value must
be at least one-half more than the mortgage amount.

Rights and Liabilities of Mortgagee

67. Right to foreclosure or sale.— This section outlines the rights of the mortgagee (the lender)
regarding foreclosure of the mortgaged property. If the mortgagee hasn't received payment and
there's no decree issued for property redemption, they can request the court to issue a decree either
barring the mortgagor (the borrower) from redeeming the property or ordering the property to be
sold. A lawsuit seeking a decree that prevents the mortgagor from redeeming the property is called a
foreclosure suit. However, there are some exceptions and limitations outlined in this section:

1. Other types of mortgagees, except those specified, are not allowed to file a foreclosure suit.

2. A mortgagor who holds the mortgagee's rights as a trustee or legal representative cannot file a
foreclosure suit.

3. Mortgagees of public infrastructure like railways or canals cannot file a foreclosure or sale suit.

4. A person who's only partially involved in the mortgage cannot file a suit regarding only their
portion of the property, unless all mortgagees have agreed to split their interests with the
mortgagor's consent.

[67A. Mortgagee when bound to bring one suit on several mortgages.— This seems like a legal
provision related to mortgages, specifically addressing the situation where a mortgagee (the lender)
holds multiple mortgages from the same borrower (mortgagor). It suggests that if the mortgagee has
the right to obtain the same type of court decree for each mortgage under section 67, and they
choose to sue to obtain that decree for one of the mortgages, they are generally obligated to sue on
all mortgages for which the mortgage money is due, unless there's a specific contract stating
otherwise. In simpler terms, if a lender has several mortgages from the same borrower and decides
to take legal action to recover the debt on one of those mortgages, they're typically required to
pursue legal action on all the mortgages for which payment is overdue, unless there's an agreement
stating otherwise. This provision is likely aimed at ensuring fairness and efficiency in legal
proceedings involving multiple mortgages between the same parties. It prevents the lender from
cherry-picking which mortgages to pursue legal action on while neglecting others, potentially leaving
the borrower unfairly burdened or disadvantaged.

3 [68. Right to sue for mortgage-money.— This excerpt outlines the circumstances under which a
mortgagee (the lender) has the right to sue for the mortgage money. Here's a breakdown:
1. **Cases where the mortgagee can sue for mortgage money**: These are outlined in four
scenarios:

a. **When the mortgagor (the borrower) agrees to repay the mortgage**: Essentially, when there's
a contractual obligation from the borrower to repay.

b. **When the mortgaged property is damaged or security is rendered insufficient**: If the

property is destroyed or the security becomes inadequate due to reasons beyond the control of both
the borrower and the lender, and the borrower fails to provide additional security when given a
reasonable opportunity to do so.

c. **When the mortgagee is deprived of security due to the wrongful act or default of the
mortgagor**: If the borrower's actions or inactions result in the mortgagee losing some or all of their
security.

d. **When the mortgagee is entitled to possession of the property, but the mortgagor fails to
deliver it**: If the borrower fails to hand over possession of the mortgaged property to the lender
when required to do so.

2. **Provisions regarding suits brought under clauses (a) or (b)**:

- The court has the discretion to stay the suit and all related proceedings, even if there's a contract
stating otherwise.

- This stay can be until the mortgagee exhausts all available remedies against the mortgaged
property or whatever remains of it, unless the mortgagee decides to abandon their security and, if
necessary, transfer the property back. Overall, these provisions establish the rights and limitations of
the mortgagee in seeking repayment of the mortgage money under various circumstances, ensuring
fairness and due process in mortgage-related legal proceedings.

69. Power of sale when valid.— This excerpt outlines the conditions under which a mortgagee, or
someone acting on their behalf, has the authority to sell the mortgaged property without needing to
involve the court. Here's a simplified explanation:

1. **Cases where the mortgagee can sell the property**:

a. If it's an English mortgage, and neither the borrower nor the lender is Hindu, Muslim, Buddhist,
or from a specific group specified by the State Government.

b. If the mortgage deed expressly gives the mortgagee the power to sell without court involvement,
and the mortgagee is the government.

c. If the mortgage deed expressly grants the power to sell without court involvement, and the
property is located in specific towns or areas specified by the State Government.

2. **Conditions before exercising this power**:

- The mortgagee must serve a written notice to the borrower demanding repayment of the
principal amount. If the borrower fails to repay within three months after receiving the notice, then
the mortgagee can proceed with selling the property.

- Alternatively, if there's at least five hundred rupees of overdue interest on the mortgage for three
months, the mortgagee can also sell the property.
3. **Consequences of selling the property**:

- If the mortgagee sells the property based on this authority, the buyer's title to the property
cannot be challenged on the grounds that there was no valid reason for the sale, or that proper
notice wasn't given, or that the power to sell was misused.

- However, anyone harmed by an unauthorized or improper use of this power can seek damages
from the person who exercised it.

4. **Handling of proceeds from the sale**:

- After paying off any prior debts related to the property, the remaining money from the sale must
be used to cover the costs incurred during the sale process and then to repay the mortgage debt.
Any leftover funds should be given to the rightful owner of the property.

5. **Exemption for powers conferred before July 1, 1882**:

- This section and another related one don't apply to powers given before July 1, 1882.

1 [69A. Appointment of receiver.— This passage outlines the rules regarding the appointment and
powers of a receiver in the context of a mortgage agreement. Let's break it down:

1. **Appointment of a Receiver**:

- The mortgagee (lender) who has the right to sell the mortgaged property can appoint a receiver
of the property's income, as long as it's allowed by the mortgage agreement.

- If the mortgage agreement specifies a person to act as the receiver and they agree, they can be
appointed.

- If there's no specified person, or if the specified ones can't or won't act, or are deceased, the
mortgagee can appoint someone agreed upon by the mortgagor (borrower). If no agreement is
reached, the mortgagee can apply to the court for receiver appointment.

2. **Responsibility of the Receiver**:

- The receiver is considered the agent of the mortgagor.

- The mortgagor is responsible for the receiver's actions, unless the mortgage agreement states
otherwise or the receiver's actions are due to the mortgagee's improper intervention.

3. **Powers of the Receiver**:

- The receiver can collect income from the property, demand payment, and give valid receipts. They
can also exercise powers delegated to them by the mortgagee.

- Anyone who pays money to the receiver doesn't need to worry about the validity of the receiver's
appointment.

4. **Remuneration and Expenses**: The receiver can retain a commission, typically up to five
percent of the income received, unless specified otherwise in their appointment. They can also use
the received money to pay for expenses like insurance premiums and necessary repairs as directed
by the mortgagee.
5. **Insurance and Application of Income**:

- The receiver may be required to insure the property and apply the income in specific ways
outlined in the mortgage agreement.

- They must follow these guidelines unless the mortgage agreement states otherwise.

6. **Variations and Extensions**:

- The terms regarding the receiver's appointment and powers can be modified or extended as
stated in the mortgage agreement.

7. **Seeking Court Opinion**:

- Parties involved can seek the court's opinion or advice on matters related to managing the
mortgaged property without starting a lawsuit, except for complex or significant issues. In essence,
this section clarifies the process and responsibilities related to the appointment and actions of a
receiver in a mortgage arrangement.

70. Accession to mortgaged property.— If anything is added to the property after the mortgage is
made, like improvements or expansions, the lender (mortgagee) has the right to include those
additions as part of the security for the loan, unless the mortgage agreement says otherwise.

If A mortgages a field to B that borders a river, and the field gets larger due to the deposit of soil by
the river (alluvion), B, the mortgage holder, has the right to claim ownership of the increased area as
part of their security for the mortgage.

If A mortgages a plot of land to B, and later A builds a house on that land, B, the mortgage holder,
has the right to claim ownership of both the land and the house as part of their security for the
mortgage.

71. Renewal of mortgaged lease.— When the property being mortgaged is a lease, and the
mortgagor (the borrower) successfully renews the lease, the mortgagee (the lender) typically has the
right to claim the new lease as part of their security for the mortgage, unless there's a specific
agreement in the mortgage contract stating otherwise.

72. Rights of mortgagee in possession.— This passage outlines the authority of the mortgagee (the
lender) regarding spending money related to the mortgaged property. Here's a simplified
explanation:

1. **Spending Authority**:

- The mortgagee is allowed to spend money for various purposes related to preserving and
maintaining the mortgaged property.

- These purposes include preventing destruction, forfeiture, or sale of the property, supporting the
mortgagor's (borrower's) title to the property, and establishing their own title to the property against
any claims by the mortgagor.

2. **Renewable Leaseholds**: If the mortgaged property is a renewable leasehold, the mortgagee

can spend money to renew the lease.

- The mortgagee can add the amount spent for these purposes to the principal amount of the
mortgage, typically at the same interest rate as the principal amount. If no interest rate is specified,
it's usually at nine percent per year.
3. **Conditions for Spending**:

- However, spending by the mortgagee to preserve the property or support the title isn't
considered necessary unless the mortgagor has been notified and failed to take appropriate steps
themselves.

4. **Insurance**:

- If the property is insurable, the mortgagee can, in the absence of a contract stating otherwise,
insure the property against fire damage.

- The premiums paid for insurance can be added to the principal amount of the mortgage, with
interest calculated at the same rate as the principal amount.

5. **Limitations on Insurance**:

- The insurance amount shouldn't exceed what's specified in the mortgage agreement or two-thirds
of the amount needed to reinstate the property in case of total destruction.

- The mortgagee isn't authorized to insure the property if the mortgagor already maintains
insurance coverage up to the amount allowed by the mortgagee. In essence, this section grants the
mortgagee the authority to spend money on necessary expenses related to the mortgaged property
and outlines rules regarding the addition of such expenses to the mortgage principal and insurance
coverage.

3 [73. Right to proceeds of revenue sale or compensation on acquisition.— This section deals with
situations where the mortgaged property or part of it is sold or acquired by the government due to
reasons like unpaid taxes or rent, or under laws like the Land Acquisition Act. Here's a simplified
explanation:

1. **Sale due to Unpaid Charges**:

- If the property is sold because of unpaid charges like taxes or rent, and this wasn't the fault of the
mortgagee (the lender), the mortgagee can claim their mortgage money from any surplus money left
after paying off these charges from the sale proceeds.

2. **Acquisition by Government**:

- If the property is acquired by the government under laws like the Land Acquisition Act, the
mortgagee has the right to claim their mortgage money from the compensation amount paid to the
mortgagor (the borrower) by the government.

In simple terms, these provisions ensure that if the mortgaged property is sold or acquired by the
government for reasons beyond the mortgagee's control, the mortgagee can still claim their owed
money from the proceeds of the sale or the compensation paid by the government to the mortgagor.

76. Liabilities of mortgagee in possession - This section outlines the responsibilities of the mortgagee
(the lender) when they take possession of the mortgaged property. Here's a simplified explanation:

1. **Management and Collection**:

- The mortgagee must manage the property responsibly and try to collect rents and profits as
efficiently as possible.
2. **Payment Obligations**:

- They must use the property's income to pay government taxes, public charges, rent, and any
overdue rent that could lead to the property's sale.

- Necessary repairs should be made using the property's income after deducting the mentioned
payments and interest.

3. **Property Preservation**:

- They must not do anything that could damage the property permanently.

4. **Insurance**:

- If the property is insured against fire, any insurance money received should be used to repair or
reinstate the property, unless the mortgagor (the borrower) directs otherwise.

5. **Accounting**:

- Detailed accounts of all income and expenses related to the property must be maintained, and
the mortgagor has the right to request copies of these accounts.

6. **Offsetting Receipts**:

- The mortgagee's receipts from the property, after deducting management expenses and interest,
should be used to reduce the mortgage debt. Any surplus should be returned to the mortgagor.

7. **Tender of Payment**:

- If the mortgagor offers to pay the amount owed on the mortgage, the mortgagee must account
for their receipts from the property since that offer. They cannot deduct any expenses incurred after
that date from the amount owed. If the mortgagee fails to fulfill any of these duties, they may be
held responsible for any losses caused by their negligence when accounts are settled according to a
court decree.

77. Receipts in lieu of interest.- This section specifies that certain clauses of Section 76 do not apply
in cases where there is a contract between the mortgagee (the lender) and the mortgagor (the
borrower). Here's a simplified explanation:

1. **Exclusion of Certain Clauses**:

- Clauses (b), (d), (g), and (h) of Section 76, which outline the mortgagee's responsibilities regarding
managing the property, making repairs, accounting for receipts, and offsetting receipts against
interest or principal, do not apply in certain situations.

2. **Contractual Agreement**:

- This exclusion applies when there's a contract between the mortgagee and the mortgagor
regarding the receipts from the mortgaged property.

3. **Receipts as Interest**:If the contract specifies that the receipts from the property will be
considered as interest on the principal amount owed by the mortgagor, then the clauses mentioned
above do not apply.

4. **Defined Portions of Principal**:

 - Similarly, if the contract states that the receipts will serve as interest and also cover specific
portions of the principal amount, then the mentioned clauses are not applicable. In essence, if
there's a contractual agreement between the lender and the borrower regarding the treatment of
receipts from the property, then certain clauses regarding the mortgagee's responsibilities may not
apply.

EXCHANGE CHAPTER VI
se118. “Exchange” defined.— Sure, let's break it down: When two people swap ownership of
something for something else, whether it's money or not, it's called an "exchange." To complete this
exchange and transfer ownership of the property, it has to be done in a way similar to how property
is transferred during a sale.

[119. Right of party deprived of thing received in exchange.— If one person involved in an exchange,
or anyone connected to them, loses what they received because of a problem with the other
person's ownership, then, unless the exchange terms say otherwise, the person with the ownership
problem is responsible for the loss. They might have to compensate for the loss or return the thing
they received, if it's still in their possession or under their control, to the person who lost out.

120. Rights and liabilities of parties.- Unless something else is stated in this Chapter, each person
involved in the exchange has the responsibilities of a seller for what they give and the rights of a
buyer for what they receive.

121. Exchange of money.— When money is exchanged, each person guarantees that the money they
give is genuine.