TRANSFER OF PROPERTY ACT, 1977 [REPEALED] THE TRANSFER OF PROPERTY ACT, 1977 [REPEALED] [Act No. XLII of 1977] [11th September, 1920] An Act to amend the law relating to the Transfer of Property by
act of parties. Whereas it is expedient to
define and amend certain parts of the law relating to the transfer of property
by act of parties; It is hereby enacted as
follows:-- (1)
This Act may be called the Transfer of Property Act, 1977. (2)
It extends to the whole of Jammu and Kashmir State. It shall come
into force on the 1st day of Baisakh, 1978. Nothing herein contained
shall be deemed to affect-- (a)
the provisions of any enactment not hereby expressly repealed: (b)
any terms or incidents of any contract or constitution of property
which are consistent with the provisions of this Act and are allowed by the law
for the time being in force: (c)
any right or liability arising out of a legal relation constituted
before this Act comes into force, or any relief in respect of any such right or
liability: or (d)
save as provided, by section 57 and Chapter IV of this Act any transfer
by operation of law or by, or in execution of, a decree or order of a Court of
competent jurisdiction: and nothing in the second
chapter of this Act shall be deemed to affect any rule of Hindu, Muhammadan or
Buddhist law, subject to the limitation contained in sections 13, 14, 15, 16
and 20, no disposition of property made by a Hindu shall be invalid by reason
only that the person for whose benefit it may have been made was not in
existence at the date of such disposition. In this Act unless there is
something repugnant in the subject or context,-- "immovable
property" does not include standing timber, growing crops or grass: "instrument"
means a non-testamentary instrument: [1]["attested"
in relation to an instrument means attested by two or more witnesses each of
whom has seen the executant sign or affix his mark to the instrument, or has
seen some other person sign the instrument in the presence and by the direction
of the executant, or has received from the executant a personal acknowledgement
of his signature or mark or of the signature of such other person, and each of
whom has signed the instrument in the presence of the executant; but it shall
not be necessary that more than one of such witnesses shall have been present
at the same time, and no particular form of attestation shall be necessary.] "registered"
means registered in the State under the law for the time being in force
regulating the registration of documents: "attached to the
earth" means-- (a)
rooted in the earth, as in the case of trees and shrubs; (b)
imbedded in the earth, as in the case of walls or buildings; or (c)
attached to what is so imbedded for the permanent beneficial
enjoyment of that to which it is attached: "actionable
claim" means a claim to any debt, other than a debt secured by mortgage of
immovable property or by hypothecation or pledge of movable property, or to any
beneficial interest in movable property not in the possession, either actual or
constructive, of the claimant, which the Civil Courts recognise as affording
grounds for relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent; [2][a person
is said to have "notice" of a fact when he actually knows that fact,
or when, but for wilful abstention from an inquiry or search which he ought to
have made, or gross negligence, he would have known it. Explanation I. Where any
transaction relating to immovable property is required by law to be and has
been effected by a registered instrument, any person acquiring such property or
any part of, or share or interest in, such property shall be deemed to have
notice of such instrument as from the date of registration or, where the
property is not all situated in one sub-district, or where the instrument has
been registered under sub-section (2) of section 30 of the Registration Act,
from the earliest
date on which any memorandum of such registered instrument has been filed by
any Sub-Registrar within whose sub-district any part of the property which is being
acquired, or of the property wherein a share or interest is being acquired is
situated. Explanation II. Any person
acquiring any immovable property or any share or interest in any such property
shall be deemed to have notice of the title, if any, of any person who is for
the time being in actual possession thereof. Explanation III. A person
shall be deemed to have had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of business to which that
fact is material: Provided that, if the agent
fraudulently conceals the fact, the principal shall not be charged with notice
thereof as against any person who was a party to or otherwise cognizant of the
fraud.] The chapters and sections
of this Act which relate to contracts shall be taken as part of the Contract
Act. And sections 54, paragraphs
2 and 3, 59, 107 and 123 shall be read as supplemental to the Registration Act, [3][In the
following sections "transfer of property" means an act by which a
living person conveys property in present or in future, to one or more person,
whether living or unborn or to himself, [4][or
to himself] and one or more other such persons; and "to transfer
property" is to perform such act. [5][In this
section living person includes a company or association or body of individuals,
whether incorporated or not, but nothing herein contained shall affect any law
for the time being in force relating to transfer of property to or by
companies, associations or bodies of individuals.] Property of any kind may be
transferred, except as otherwise provided by this Act or by any other law for
the time being in force. (a)
The chance of an heir-apparent succeeding to an estate, the chance
of a relation obtaining a legacy on the death of a kinsman, or any other mere
possibility of a like nature, cannot be transferred. (b)
A mere right of re-entry for breach of a condition subsequent
cannot be transferred to any one except the owner of the property affected
thereby. (c)
An easement cannot be transferred apart from the dominant
heritage. (d)
An interest in property restricted in its enjoyment to the owner
personally cannot be transferred by him.
Preamble 1 - THE TRANSFER OF PROPERTY ACT, 1977 [REPEALED]PREAMBLE
(e) A mere
right to sue cannot be transferred.
(f) A public
office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.
(g) Stipends
allowed to military and civil pensioners of Government and political pensions
cannot be transferred.
(h) No
transfer can be made(1) in so far as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the
meaning of section 23 of the Contract Act or (3) to a person legally
disqualified to be transferee.
(i)
Nothing in this section shall be deemed to authorise a tenant
having an untransferable right of occupancy, the farmer of an estate in respect
of which default has been made in paying revenue or the lessee of an estate
under the management of a Court of Wards to assign his interest as such tenant,
farmer or lessee.
Section 7 - Persons competent to transfer
Every person competent to
contract and entitled to transferable property, or authorised to dispose of
transferable property not his own, is competent to transfer such property
either wholly or in part, and either absolutely or conditionally, in the
circumstances, to the extent and in the manner allowed and prescribed by any
law for the time being in force.
Section 8 - Operation of transfer
Unless a different
intention is expressed or necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then
capable of passing in the property, and in the legal incidents thereof.
Such incidents include,
where the property is land the easements annexed thereto, the rents and profits
thereof accruing after the transfer, and all things attached to the earth;
and, where the property, is
machinery attached to the earth, the movable parts thereof;
and, where the property is
a house, the easements annexed thereto, the rent thereof accruing after the
transfer and the locks, keys, bars, doors, windows, and all other things
provided for permanent use therewith;
and, where the property is
a debt or other actionable claim, the securities therefor (except where they
are also for other debts or claims not transferred to the transferee), but not
arrears of interest accrued before the transfer;
and, where the property is
money or other property yielding income, the interest or income thereof
accruing after the transfer takes effect.
Section 9 - Oral transf
A transfer of property may
be made without writing in every case in which a writing is not expressly
required by law.
Section 10 - Condition restraining alienation
Where property is
transferred subject to a condition or limitation absolutely restraining the
transferee or any person claiming under him from parting with or disposing of
his interest in the property, the condition or limitation is void, except in
the case of a lease where the condition is for the benefit of the lessor or
those claiming under him: Provided that property may be transferred to or for
the benefit of a woman, so that she shall not have power during her marriage to
trans-far or charge the same or her beneficial interest therein.
Section 11 - Restriction repugnant to interest created
Where, on a transfer of
property, an interest therein is created absolutely in favour of any person,
but the terms of the transfer direct that such interest shall be applied or
enjoyed by him in a particular manner, he shall be entitled to receive and
dispose of such interest as if there were no such direction.
[7][Where
any such direction has been made in respect of one piece of immovable property
for the purpose of securing the beneficial enjoyment of another piece of such
property, nothing in this section shall be deemed to affect any right which the
transferor may have to enforce such direction or any remedy which he may have
in respect of a breach thereof.]
Section 12 - Condition making interest determinable on insolvency or attempted alienation
Where property is
transferred subject to a condition or limitation making any interest therein,
reserved or given to or for the benefit of any person, to cease on his becoming
insolvent or endeavouring to transfer or dispose of the same, such condition or
limitation is void.
Nothing in this section
applies to a condition in a lease for the benefit of the lessor or those
claiming under him.
Section 13 - Transfer for benefit of unborn person
Where, on a transfer of
property, an interest therein is created for the benefit of a person not in
existence at the date of the transfer, subject to a prior interest created by
the same transfer, the interest created for the benefit of such person shall
not take effect, unless it extends to the whole of the remaining interest of
the transferor in the property.
Section 14 - Rule against perpetuity
No transfer of property can
operate to create an interest which is to take effect after the life-time of
one or more persons living at the date of such transfer, and the minority of
some person who shall be in existence at the expiration of that period, and to
whom, if he attains full age, the interest created is to belong.
Section 15 - Transfer to class some of whom come under sections 13 and 14
If on a transfer of
property, an interest therein is created for the benefit of a class of persons
with regard to some of whom such interest fails by reason of any of the rules
contained in sections 13- and 14, such interest fails [8][in
regard to those persons only and not in regard to the whole class.]
Section 16 - Transfer to take effect on failure of prior interest
[9][Where,
by reason of any of the rules contained in sections 13 and 14, an interest
created for the benefit of a person or of a class of persons fails in regard to
such person or the whole of such class, any interest created in the same
transaction and intended to take effect after or upon failure of such prior
interest also fails.]
Section 17 - Direction for accumulation
[10][(1)
Where the terms of transfer of property direct that the income arising front
the property shall be accumulated either wholly or in part during a period
longer than:--
(a)
the life of the transferor, or
(b)
a period of eighteen years from the date of the transfer, such
direction shall, save, as hereinafter provided, be void to the extent to which
the period during which the accumulation is directed exceeds the longer of the
aforesaid periods, and at the end of such last mentioned period the property
and the income thereof shall be disposed of as if the period during which the
accumulation has been directed to be made had elapsed.
(2) ??This section shall not affect any direction
for accumulation for the purpose of--
(i)
the payment of the debts of the transferor or any other person
taking any interest under the transfer, or
(ii)
the provision of portions for children or remoter issue of the
transferor or of any other person taking any interest under the transfer, or
(iii)
the preservation or maintenance of the property transferred, and
such direction may be made accordingly,]
Section 18 - Transfer in perpetuity for benefit of public
[11][The
restrictions in sections 14, 16 and 17 shall not apply in the case of a
transfer of property for the benefit of the public in the advancement of
religion, knowledge, commerce, health, safety or any other object beneficial to
human or other living being.]
Section 19 - Vested interest
Where, on a transfer of
property, an interest therein is created in favour of a person without
specifying the time when it is to take effect, or in terms specifying that it
is to take effect forthwith or on the happening of an event which must happen,
such interest is vested, unless a contrary intention appears from the terms of
the transfer.
A vested interest is not
defeated by the death of the transferee before he obtains possession.
Explanation.--An intention
that an interest shall not be vested is not to be inferred merely from a
provision whereby the enjoyment thereof is postponed, or whereby a prior
interest in the same property is given or reserved to some other person, or
whereby income arising from the property is directed to be accumulated until
the time of enjoyment arrives or from a provision that if a particular event
shall happen the interest shall pass to another person.
Section 20 - When unborn person acquires vested interest on transfer for his benefit
Where, on a transfer of
property, an interest therein is created for the benefit of a person not then
living, he acquires upon his birth, unless a contrary intention appear from the
terms of the transfer, a vested interest, although he may not be entitled to
the enjoyment thereof immediately on his birth.
Section 21 - Contingent interest
Where, on a transfer of
property, an interest therein is created in favour of a person to take effect
only on the happening of a specified uncertain event, or if a specified
uncertain event shall not happen, such person thereby acquires a contingent
interest in the property. Such interest becomes a vested interest in the former
case, on the happening of the event, in the latter, when the happening of the
event becomes impossible.
Exception.--Where, under a
transfer of property, a person becomes entitled to an interest therein upon
attaining a particular age, and the transferor also gives to him absolutely the
income to arise from such interest before he reaches that age, or directs the
income or so much thereof as may be necessary to be applied for his benefit,
such interest is not contingent.
Section 22 - Transfer to members of a class who attain a particular age
Where, on a transfer of
property, an interest therein is created in favour of such members only of a
class as shall attain a particular age, such interest does not vest in any
member of the class who has not attained that age.
Section 23 - Transfer contingent on happening of specified uncertain event
Where, on a transfer of
property, an interest therein is to accrue to a specified person if a specified
uncertain event shall happen and no time is mentioned for the occurrence of
that event, the interest fails unless such event happens before, or at the same
time as, the intermediate or precedent interest ceases to exist.
Section 24 - Transfer to such of certain persons as survive at some period, not specified
Where, on a transfer of
property, an interest therein is to accrue to such of certain persons as shall
be surviving at some period, but the exact period is not specified, the
interest shall go to such of them as shall be alive when the intermediate or
precedent interest ceases to exist, unless a contrary intention appears from
the terms of the transfer.
Section 25 - Conditional transfer
An interest created on a
transfer of property and dependent upon a condition fails if the fulfilment of
the condition is impossible, or is forbidden by law, or is of such a nature
that, if permitted, it would defeat the provisions of any law or is fraudulent,
or involves or implies injury to the person or property of another, or the
Court regards it as immoral or opposed to public policy.
Section 26 - Fulfilment of condition precedent
Where the terms of a
transfer of property impose a condition to be fulfilled before a person can
take an interest in the property, the condition shall be deemed to have been
fulfilled if it has been substantially complied with.
Section 27 - Conditional transfer to one person coupled with transfer to another on failure of prior disposition
Where, on a transfer of
property, an interest therein is created in favour of one person, and by the
same transaction an ulterior disposition of the same interest is made in favour
of another, if the prior disposition under the transfer shall fail, the
ulterior disposition shall take effect upon the failure of the prior
disposition, although the failure may not have occurred in the manner contemplated
by the transferor.
But, where the intention of
the parties to the transaction is that the ulterior disposition shall take
effect only in the event of the prior disposition failing in a particular
manner, the ulterior disposition shall not take effect unless the prior
disposition fails in that manner.
Section 28 - Ulterior transfer conditional on happening or not happening of specified event
On a transfer of property
an interest therein may be created to accrue to any person with the condition
superadded that in case a specified uncertain event shall happen such interest
shall pass to another person, or that in case a specified uncertain event shall
not happen such interest shall pass to another person. In each case the
dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23,
24, 25 and 27.
Section 29 - Fulfilment of condition subsequent
An ulterior disposition of
the kind contemplated by the last preceding section cannot take effect unless
the condition is strictly fulfilled.
Section 30 - Prior disposition not affected by invalidity of ulterior disposition
If the ulterior disposition
is not valid, the prior disposition is not affected by it.
Section 31 - Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen
Subject to the provisions
of section 12, on a transfer of property an interest therein may be created
with the condition superadded that it shall cease to exist in case a specified
uncertain event shall happen, or in case a specified uncertain event shall not
happen.
Section 32 - Such condition must not be invalid
In order that a condition
that an interest shall cease to exist may be Valid, it is necessary that the
event to which it relates be one which could legally constitute the condition
of the creation of an interest.
Section 33 - Transfer conditional on performance of act, no time being specified for performance
Where, on a transfer of
property, an interest therein is created subject to a condition that the person
taking it shall perform a certain act but no time is specified for the
performance of the act, the condition is broken when he renders impossible,
permanently or for an indefinite period, the performance of the act.
Section 34 - Transfer conditional on performance of act, time being specified
Where an act is to be
performed by a person either as a condition to be fulfilled before an interest
created on a transfer of property is enjoyed by him, or as a condition on the
non-fulfilment of which the interest is to pass from him to another person, and
a time is specified for the performance of the act, if such performance within
the specified time is prevented by the fraud of a person who would be directly
benefited by non-fulfilment of the condition, such further time shall as
against him be allowed for performing the act as shall be requisite to make up
for the delay caused by such fraud. But if no time is specified for the
performance of the act, then, if its performance is by the fraud of a person
interested in the non-fulfilment of the condition rendered impossible or
indefinitely postponed, the condition shall as against him be deemed to have
been fulfilled.
Section 35 - Election when necessary
Election
Where a person professes to
transfer property which he has no right, to transfer, and as part of the same
transaction confers any benefit on the owner of the property, such owner must
elect either to confirm such transfer or to dissent from it; and in the latter
case he shall relinquish the benefit so conferred, and the benefit so
relinquished shall revert to the transferor or his representative as if it had
not been disposed of, subject
nevertheless, where the
transfer is gratuitous, and the transferor has, before the election, died or
otherwise become incapable of making a fresh transfer, and in all cases where
the transfer is for consideration, to the charge of making good to the
disappointed transferee the amount or value of the property attempted to be
transferred to him.
The rule in the first
paragraph of this section applies whether the transferor does or does not
believe that which he professes to transfer to be his own.
A person taking no benefit
directly under a transaction, but deriving a benefit under it indirectly, need
not elect.
A person who in his own
capacity takes a benefit under the transaction may in another dissent
therefrom.
Exception to the last
preceding four rules.--Where a particular benefit is expressed to be conferred
on the owner of the property which the transferor professes to transfer, and
such benefit is expressed to be in lieu of that property, if such owner claim
the property, he must relinquish the particular benefit, but he is not bound to
relinquish any other benefit conferred upon him by the same transaction.
Acceptance of the benefit
by the person on whom it is conferred constitutes an election by him to confirm
the transfer, if he is aware of his duty to elect and of those circumstances
which would influence the judgment of a reasonable man in making an election,
or if he waives enquiry into the circum-stances.
Such knowledge or waiver
shall, in the absence of evidence to the contrary, be presumed, if the person
on whom the benefit has been conferred has enjoyed it for two years without
doing any act to express dissent.
Such knowledge or waiver
may be inferred from any act of his which renders it impossible to place the
persons interested in the property professed to be transferred in the same
condition as if such act had not been done.
If he does not within one year
after the date of the transfer signify to the transferor of his representatives
his intention to confirm or to dissent from the transfer, the transferor or his
representatives may, upon the expiration of that period, require him to make
his election; and, if he does not comply with such requisition within a
reasonable time after he has received it he shall be deemed to have elected to
confirm the transfer. In case of disability, the election shall be postponed
until the disability ceases, or until the election is made by some competent
authority.
Section 36 - Apportionment of periodical payment on determination of , interest of person entitled
Apportionment
In the absence of a
contract or local usage to the contrary, all rents, annuities, pensions, dividends
and other periodical payments in the nature of income shall, upon the transfer
of the interest of the person entitled to receive such payments, be deemed, as
between the transferor and transferee, to accrue due from day to day, and to be
apportionable accordingly, but to be payable on the days appointed for the
payment thereof.
Section 37 - Apportionment of benefit of obligation on severance
When, in consequence of a
transfer, property is divided and held in several shares, and thereupon the
benefit of any obligation relating to the property as a whole passes from one
to several owners of the property, the corresponding duty shall, in the absence
of a contract to the contrary amongst the owners, be performed in favour of
each of such owners in proportion to the value of his share in the property,
provided that the duty can be severed and that the severance does not
substantially increase the burden of the obligation; but if the duty cannot be
severed, or if the severance would substantially increase the burden of the
obligation, the duty shall be performed for the benefit of such one of the
several owners as they shall jointly designate for that purpose:
Provided that no person on
whom the burden of the obligation lies shall be answerable for failure to discharge
it in manner provided by this section, unless and unltil he has had reasonable
notice of the severance.
Nothing in this section
applies to leases for agricultural purposes unless and until His Highness by
notification in the State Gazette so directs.
Section 38 - Transfer by person authorised only under certain circumstances to transfer
Where any person,
authorised only under circumstances in their nature variable to dispose of
immovable property, transfers such property, for consideration, alleging the
existence of such circumstances, they shall, as between the transferee on the
one part and the transferor and other persons (if any) affected by the transfer
on the other part, be deemed to have existed, if the transferee, after using
reasonable care to ascertain the existence of such circumstances, has acted in
good faith.
Section 39 - Transfer where third person is entitled to maintenance
Where a third person has a
right to receive maintenance or a provision for advancement or marriage from
the profits of immovable property, and such property is transferred [12][***],
the right may be enforced against the transferee, if he has notice [13][thereof]
or if the transfer is gratuitous; but not against a transferee for
consideration and without notice of the right, nor against such property in his
hands.
Section 40 - Burden of obligation imposing restriction on use land
Where, for the more
beneficial enjoyment of his own immovable property, a third person has,
independently of any interest in the immovable property of another or of any
easement thereon, a right to restrain the enjoyment [14][in
a particular manner of the latter property], where a third person is entitled
to the benefit of an obligation arising out of contract and annexed to the
ownership of immovable property, but not amounting to an interest therein or
easement thereon, such
right or obligation may be enforced against a transferee with notice thereof or
a gratuitous transferee of the property affected thereby, but not against a
transferee for consideration and without notice of the right or obligation, nor
against such property in his hands.
Section 41 - Transfer by ostensible owner
Where, with the consent,
express or implied, of the persons interested in immovable property, a person
is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the
transferor was not authorised to make it: provided that the transferee, after
taking reasonable care to ascertain that the transferor had power to make the
transfer, has acted in good faith.
Section 42 - Transfer by person having authority to revoke former transfer
Where a person transfers
any immovable property, reserving power to revoke the transfer, and
subsequently transfers the property for consideration to another transferee,
such transfer operates in favour of such transferee (subject to any condition
attached to the exercise of the power) as a revocation of the former transfer
to the extent of the power.
Section 43 - Transfer by unauthorised person who subsequently acquires interest in property transferred
Where a person [15][fradulently
or] erroneously represents that he is authorised to transfer certain immovable
property and professes to transfer such property for consideration, such
transfer shall, at the option of the transferee, operate on any interest which
the transferor may acquire in such property at any time during which the
contract of transfer subsists.
Nothing in this section
shall impair the right of transferees in good faith for consideration without
notice of the existence of the said option.
Section 44 - Transfer by one co-owner
Where one of two or more
co-owners of immovable property legally competent in that behalf transfers his
share of such property or any interest therein, the transferee acquires, as to
such share or interest, and so far as is necessary to give effect to the
transfer, the transferor's right to joint possession or other common or part
enjoyment of the property, and to enforce a partition of the same, but subject
to the conditions and liabilities affecting, at the date of the transfer, the
share or interest so transferred.
Where the transferee of a
share of a dwelling house belonging to an undivided family is not a member of
the family, nothing in this section shall be deemed to entitle him to joint
possession or other common or part enjoyment of the house.
Section 45 - Joint transfer for consideration
Where immovable property is
transferred for consideration to two or more persons, and such consideration is
paid out of a fund belonging to them in common, they are, in the absence of a
contract to the contrary, respectively entitled to interests in such property
identical, as nearly as may be, with the interests to which they were
respectively entitled in the fund; and, where such consideration is paid out of
separate funds belonging to them respectively, they are, in the absence of a
contract to the contrary, respectively entitled to interests in such property
in proportion to the shares of the consideration which they respectively
advanced.
In the absence of evidence
as to the interests in the fund to which they were respectively entitled, or as
to the shares which they respectively advanced, such persons shall be presumed
to be equally interested in the property.
Section 46 - Transfer for considertation by persons having distinct interests
Where immovable property is
transferred for consideration by persons having distinct interests therein, the
transferor's area in the absence of a contract to the contrary, entitled to
share in the consideration equally, where their interests in the property were
of equal value, and, where such interests were of unequal value,
proportionately to the value of their respective interests.
Section 47 - Transfer by co-owners of share in common property
Where several co-owners of
immovable property transfer a share therein without specifying that the
transfer is to take effect on any particular share or shares of the
transferors, the transfer, as among such transferors, takes effect on such
shares equally where the shares were equal, and, where they were unequal
proportionately to the extent of such shares.
Section 48 - Priority of rights created by transfer
Where a person purports to
create by transfer at different times rights in or over the same immovable
property, and such rights cannot all exist or be exercised to their full extent
together, each later created right shall, in the absence of a special contract
or reservation binding the earlier transferees, be subject to the rights
previously created.
Section 49 - Transferee's right under policy
Where immovable property is
transferred for consideration, and such property or any part thereof is at the
date of the transfer insured against loss or damage, by fire, the transferee,
in case of such loss or damage, may, in the absence of a contract to the
contrary, require any money which the transferor actually receives under the
policy, or so much there of as may be necessary, to be applied in reinstating
the property.
Section 50 - Rent bona fide paid to holder under defective title
No person shall be
chargeable with any rents or profits of any immovable property, which he has in
good faith paid or delivered to any person of whom he in good faith held such
property, notwithstanding it may afterwards appear that the person to whom such
payment or delivery was made had no right to receive such rents or profits.
Section 51 - Improvements made by bona fide holders under defective titles
When the transferee of
immovable property makes any improvement on the property, believing in good
faith that he is absolutely entitled thereto, and he is subsequently evicted
therefrom by any person having a better title, the transferee has a right to
require the person causing the eviction either to have the value of the
improvement estimated and paid or secured to the transferee, or to sell his
interest in the property to the transferee at the then market-value thereof
irrespective of the value of such improvement.
The amount to be paid or
secured in respect of such improvement shall be the estimated value thereof at
the time of the eviction.
When, under the
circumstances aforesaid, the transferee has planted or sown on the property
crops which are growing when he is evicted therefrom, he is entitled to such
crops and to free ingress and egress to gather and carry them.
Section 52 - Transfer of property pending suit relating thereto
[16][During
the [pendency] in any Court having authority in the State of [any] suit or
proceeding [which is not collusive and] in which any right to immovable
property is directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or proceeding so
as to affect the rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the Court and on such
terms as it may impose.
[Explanation. For the
purposes of this section the pendency of a suit or proceeding shall be deemed
to commence from the date of the presentation of the plaint or the institution
of the proceeding in a Court of competent jurisdiction, and to continue until
the suit or proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has been obtained,
or has become unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any law for the time being
in force.]
Section 53 - Fraudulent transfer
[17][(1)
Every transfer of immovable property made with intent to defeat or delay the
creditors of the transferor shall be voidable at the option of any creditor so
defeated or delayed.
Nothing in this sub-section
shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub-section
shall affect any law for the time being in force relating to insolvency.
A suit instituted by a
creditor (which term includes a decree-holder whether he has or has not applied
for execution of his decree) to avoid a transfer on the ground that it has been
made with intent to defeat or delay the creditors of the transferor, shall be
instituted on behalf of, or for the benefit of, all the creditors.
(2) ???Every transfer of
immovable property made without consideration with intent to defraud a
subsequent transferee shall be voidable at the option of such transferee.
For the purposes of this
sub-section, no transfer made without consideration shall be deemed to have
been made with intent to defraud by reason only that a subsequent transfer for
consideration was made.]
Section 54 - Sale" defined
"Sale" is a
transfer of ownership in exchange for a price paid or promised or part-paid and
part-promised.
Such transfer, in the case
of tangible immovable property or in the case of a reversion or other
intangible thing, can be made only by a registered instrument.
A contract for the sale of
immovable property is a contract that a sale of such property shall take place
on terms settled between the parties, but no such contract shall be valid,
unless it is in writing, and signed by the parties.
It does not, of itself,
create any interest in or charge on such property.
Section 55 - Rights and liabilities of buyer and seller
[18][In the
absence of a contract to the contrary, the buyer and seller of immovable
property respectively are subject to the liabilities, and have the rights,
mentioned in the rules next following, or such of them as are applicable to the
property sold:
(1)
The seller is bound?
(a)
to disclose to the buyer any material defect in the property [19][or
in the seller's title thereto] of which the seller is, and the buyer is not,
aware, and which the buyer could not with ordinary care discover;
(b)
to produce to the buyer on his request for examination all documents
of title relating to the property which are in the seller's possession or
power;
(c)
answer to the best of his information all relevant questions put
to him by the buyer in respect of the property or the title thereto;
(d)
on payment or tender of the amount due in respect of the price, to
execute a proper conveyance of the property when the buyer tenders it to him
for execution at a proper time and place;
(e)
between the date of the contract of sale and the delivery of the
property, to take as much care of the property and all documents of title
relating thereto which are in his possession as an owner of ordinary prudence
would take of such property and documents;
(f)
to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits;
(g)
to pay all public charges and rent accrued due in respect of the
property up to the date of the sale, the interest on all incumbrances on such
property due on such date, and, except where the property is sold subject to
incumbrances, to discharge all incumbrances on the property then existing.
(2)
The seller shall be deemed to contract with the buyer that the
interest which the seller professes to transfer to the buyer subsists and that
he has power to transfer the same:
Provided that, where the
sale is made by a person in a fiduciary character, he shall be deemed to
contract with the buyer that the seller has done no act whereby the property is
encumbered or whereby he is hindered from transferring it.
The benefit of the contract
mentioned in this rule shall be annexed to, and shall go with, the interest of
the transferee as such, and may be enforced by every person in whom that
interest is for the whole or any part thereof from time to time vested.
(3) Where the
whole of the purchase-money has been paid to the seller, he is also bound to
deliver to the buyer all documents of title relating to the property which are
in the seller's possession or power:
Provided that, (a) where
the seller retains any part of the property comprised in such documents, he is
entitled to retain them all, and, (b) where the whole of such property is sold
to different buyers, the buyer of the lot of greatest value is entitled to such
documents. But in case (a) the seller, and in case (b) the buyer of the lot of
greatest value, is bound, upon every reasonable request by the buyer, or by any
of the other buyers, as the case may be, and at the cost of the person making
the request, to produce the said documents and furnish such true copies thereof
or extracts therefrom as he may require; and in the meantime, the seller, or
the buyer of the lot of greatest value, as the case may be, shall keep the said
documents safe, uncancelled and undefaced, unless prevented from so doing by
fire or other inevitable accident.
(4)
The seller is entitled?
(a)
to the rents and profits of the property till the ownership
thereof pass to the buyer;
(b)
where the ownership of the property has passed to the buyer before
payment of the whole of the purchase-money to a charge upon the property in the
hands of the buyer [20][any
transferee without consideration or any transferee with notice of the
non-payment] for the amount of the purchase-money, or any part thereof
remaining unpaid, and for interest on such amount or part [21][from
the date on which possession has been delivered.]
(5)
The buyer is bound?
(a)
to disclose to the seller any fact as to the nature or extent of
the seller's interest in the property of which the buyer is aware but of which
he has reason to believe that the seller is not aware, and which materially
increases the value of such interest;
(b)
to pay or tender, at the time and place of completing the sale,
the purchase-money to the seller or such person as he directs: provided that,
where the property is sold free from incumbrances, the buyer may retain out of
the purchase-money the amount of any incumbrances on the property existing at
the date of the sale, and shall pay the amount so retained to the persons
entitled thereto;
(c)
where the ownership of the property has passed to the buyer, to
bear any loss arising from the destruction, injury or decrease in value of the
property not caused by the seller;
(d)
where the ownership of the property has passed to the buyer, as
between himself and the seller, to pay all public charges and rent which may
become payable in respect of the property, the principal moneys due on any
incumbrances subject to which the property is sold, and the interest thereon
afterwards accruing due.
(6)
The buyer is entitled?
(a)
where the ownership of the property has passed to him, to the
benefit of any improvement in, or increase in value of, the property, and to
the rents and profits thereof;
(b)
unless he has improperly declined to accept delivery of the
property, to a charge on the property, as against the seller and all persons
claiming under him [22][*],
to the extent of the seller's interest in the property, for the amount of any
purchase-money properly paid by the buyer in anticipation of the delivery and
for interest on such amount; and, when he properly declines to accept the
delivery, also for the earnest (if any) and for the costs (if any) awarded to
him of a suit to compel specific performance of the contract or to obtain a
decree for its rescission.
An omission to make such
disclosures as are mentioned in this section, paragraph (1), clause (a), and
paragraph (5), clause (a), is fraudulent.
Section 56 - Marshalling by subsequent purchaser
[23][If the
owner of two or more properties mortgages them to one person and then sells one
or more of the properties to another person, the buyer is, in the absence of a
contract to the contrary, entitled to have the mortgaged-debt satisfied out of
the property or properties not sold to him, so far as the same will extend, but
not so as to prejudice the rights of the mortgagee or persons claiming under
him or of any other person who has for consideration acquired an interest in
any of the properties.]
Chapter 57 - Provision by Court for incumbrance and sale free therefrom
Discharge of incumbrance on Sale.
(a)
Where immovable property subject to any incumbrance, whether
immediately payable or not, is sold by the Court or in execution of a decree,
or out of Court, the Court may, if it thinks fit, on the application of any
party to the sale, direct or allow payment into Court,--
(1)
in case of an annual or monthly sum charged on the property, or of
a capital sum charged on a determinable interest in the property,-- of such
amount as, when invested in securities of the Government of India, or of the
State the Court considers will be sufficient, by means of the interest thereof,
to keep down or otherwise provide for that charge, and
(2)
in any other case of a capital sum charged on the property,--of
the amount sufficient to meet the incumbrance and any interest due thereon.
But in either case there
shall also be paid into Court such additional amount as the Court considers
will be sufficient to meet the contingency of further costs, expenses and
interest, and any other contingency except depreciation of investments not
exceeding one-tenth part of the original amount to be paid in, unless the Court
for special reasons (which it shall record) thinks fit to require a larger
additional amount.
(b) Thereupon
the Court may, if it thinks fit, and after notice to the incumbrancer, unless
the Court for reasons to be recorded in writing, thinks fit to dispense with
such notice, declare the property to be freed from the incumbrance, and make
any order for conveyance; or vesting order, proper for giving effect to the
sale, and give directions for the retention and investment of the money in
Court.
(c) After
notice served on the persons interested in or entitled to the money or fund in
Court, the Court may direct payment or transfer thereof to the persons entitled
to receive or give a discharge for the same, and generally may give directions
respecting the application or distribution of the capital or income thereof.
(d) An appeal
shall lie from any declaration, order or direction under this section as if the
same were a decree.
(e) In this
section "Court" means (1) the High Court in the exercise of
extraordinary original civil jurisdiction, (2) the Court of a District Judge
within the local limits of whose jurisdiction the property or any part thereof
is situate, (3) any other Court which His Highness may, from time to time, by
notification in the Jammu and Kashmir Government Gazette, declare, to be
competent to exercise the jurisdiction conferred by this section.
Section 58 - "Mortgage," "mortgagor," "mortgagee," "mortgage-money" and "mortgage-deed defined
(a) A
mortgage is the transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advanced by way of
loan, an existing or future debt, or the performance of an engagement which may
give rise to a pecuniary liability.
The transferor is called a
mortgagor, the transferee a mortgagee; the principal money and interest of
which payment is secured for the time being are called the mortgage-money, and
the instrument [24][**]
by which the transfer is effected is called a mortgage-deed.
(b) Where,
without delivering possession of the mortgaged property, the mortgagor binds
himself personally to pay the mortgage-money, and agrees, expressly or
impliedly, that, in the event of his failing to pay according to his contract,
the mortgagee shall have a right to cause the mortgaged property to be sold and
the proceeds of sale to be applied, so far as may be necessary, in payment of
the mortgage-money, the transaction is called a simple mortgage and the
mortgagee a simple mortgagee.
(c)
Where the mortgagor ostensibly sells the mortgaged property--
on condition that on
default of payment of the mortgage-money on a certain date the sale shall
become absolute, or
on condition that on such
payment being made the sale shall become void, or
on condition that on such
payment being made the buyer shall transfer the property to the seller,the
transaction is called a mortgage by conditional sale and the mortgagee a
mortgagee by conditional sale.
[25][Provided
that no such transaction shall be deemed to be a mortgage, unless the condition
is embodied in the document which affects or purports to effect the sale.]
(d) Where the
mortgagor delivers possession [26][on
expressly or by implication binds himself to deliver possession] of the
mortgaged property to the mortgagee, and authorises him to retain such
possession until payment of mortgage-money, and to receive the rents and
profits accruing from the property [27][or
any part of such rents and profits and to appropriate the same] in lieu of
interest, or in payment of the mortgage-money, or partly in lieu of
interest [28][or] partly in payment of
the mortgage-money, the transaction is called an usurfuctuary mortgage and the
mortgagee an usufructuary mortgagee.
Section 59 - Mortgage when to be by assurance
A mortgage can be effected
only by a registered instrument signed by the mortgagor and attested by at
least two witnesses.
A person is said to attest
a document when he signs it as a witness after seeing the executant sign it or
on receiving from the executant or if the executant is a pardanashin female
from herself after proper identification and acknowledgment that the executant
has signed the document.
Section 60 - Right of mortgagor to redeem
Rights and Liabilities of Mortgagor.
[29][At any
time after the principal money has become [due], the mortgagor has a right, on
payment or tender, at a proper time and place, of the mortgage-money, to
require the mortgagee (a) to deliver [30][to
the mortgagor the mortgage-deed and all documents relating to the
mortgaged-property which are in possession or power of the mortgagee], (b)
where the mortgagee is in possession of the mortgaged property, to deliver
possession thereof to the mortgagor, and (c) at the cost of the, mortgagor
either to re-transfer the mortgaged-property to him or to such third person as
he may direct, or to execute and [31][**]
to have registered an acknowledgment in writing that any right in derogation of
his interest transferred to the mortgagee has been extinguished;
Provided that the right
conferred by this section has not been extinguished by act of the parties or
by [32][decree] of a Court.
The right conferred by this
section is called a right to redeem and a suit to enforce it is called a suit
for redemption.
Nothing in this section
shall be deemed to render invalid any provision to the effect that, if the time
fixed for payment of the principal money has been allowed to pass or no such
time has been fixed, the mortgagee shall be entitled to reasonable notice
before payment or tender of such money.
Nothing in this section
shall entitle a person interested in a share only of the mortgaged property to
redeem his own share only, on payment of a proportionate part of the amount
remaining due on the mortgage, except [33][only]
where a mortgagee, or, if there are more mortgagees than one, all such
mortgages, has or have acquired in whole or in part, the share of a mortgagor.
Section 60A - Obligation to transfer to third party instead of re-transference to mort gagor
[34][(1)
Where a mortgagor is entitled to redemption, then, on the fulfilment of any
conditions on the fulfilment of which he would be entitled to require a
re-transfer he may require the mortgagee, instead of re-transferring the
property, to assign the mortgage-debt and transfer the mortgaged property to
such third person as the mortgagor
may direct; and the mortgagee shall be bound to assign and transfer
accordingly.
(2)? ?The
rights conferred by this section belong to and may be enforced by the mortgagor
or by any encumbrancer not-withstanding an intermediate encumbrance; but the
requisition of any encumbrancer shall prevail over a requisition of the
mortgagor and, as between encumbrancers, the requisition of a prior
encumbrancer shall prevail over that of a subsequent encumbrancer.
(3) ??The provisions of this section do not apply
in the case of a mortgagee who is or has been in possession.]
Section 60B - Right to inspection and production of documents
[35][A
mortgagor, as long as his right of redemption subsists shall be entitled at all
reasonable times, at his request and at his own cost, and on payment of the
mortgagee's costs, and expenses in this behalf, to inspect and make copies or
abstracts of, or extracts from, documents of title relating to the mortgaged
property which are in the custody or power of the mortgagee.]
Section 61 - Right to redeem separately or simultaneously
[36][A
mortgagor who has executed two or more mortgages in favour of the same
mortgagee shall, in the absence of a contract to the contrary, when the
principal money of any two or more of the mortgages has become due, be entitled
to redeem any one such mortgage separately, or any two or more of such
mortgages together.]
Section 62 - Right of usufructuary mortgagor to recover possession
In the case of a
usufructuary mortgage, the mortgagor has a, right to recover possession of the
property [37][together with the mortgage-deed
and all documents relating to the mortgaged property which are in the
possession or power of the mortgagee,--]
(a)
where the mortgagee is authorised to pay himself the
mortgage-money from the rents and profits of the property, when such money is paid;
(b)
where the mortgagee is authorised to pay himself from such rents
and profits [38][or
any part thereof a part only of the mortgage-money],--when the term (if any),
prescribed for the payment of the mortgage-money has expired and the mortgagor
pays or tenders to the mortgagee [39][the
mortgage money or the balance thereof] or deposits it in Court as herein after
provided.
Section 63 - Accession to mortgaged property
Where mortgaged property in
possession of the mortgagee has, during the continuance of the mortgage,
received any accession, the mortgagor, upon redemption, shall, in the absence
of a contract to the contrary, be entitled as against the mortgagee to such
accession.
Where such accession has
been acquired at the expense of the mortgagee, and is capable of separate
possession or enjoyment without detriment to the principal property, the
mortgagor desiring to take the accession must pay to the mortgagee the expense
of acquiring it. If such separate possession or enjoyment is not possible, the
accession must be delivered with the property, the mortgagor being liable, in
the case of an acquisition necessary to preserve the property from destruction,
forfeiture or sale, or made with his assent, to pay the proper cost thereof, as
an addition to the principal money, at the same rate of interest.
In the case last mentioned
the profits, if any, arising from the accession shall be credited to the
mortgagor.
Where the mortgage is
usufructuary and the accession has been acquired at the expense of the
mortgagee, the profits, if any, arising from the accession shall, in the
absence of a contract to the contrary, be set off against interest, if any,
payable on the money so expended.
Section 63A - Improvements to mortgaged property
[40][(1)
Where mortgaged property in possession of the mortgagee has during the
continuance of the mortgage, been improved, the mortgagor upon redemption,
shall in the absence of a contract to the contrary, be entitled to the
improvement; and the mortgagor shall not, save only in cases provided for in
sub-section (2), be liable to pay the cost thereof.
(2) ??Where any such improvement was effected at
the cost of the mortgagee and was necessary to preserve the property from
destruction or deterioration or was necessary to prevent the security from
becoming insufficient, or was made in compliance with the lawful order of any
public servant or public authority, the mortgagor shall, in the absence of a
contract to the contrary, be liable to pay the proper cost thereof as an
addition to the principal money with interest at the same rate as is payable on
the principal, or, where no such rate is fixed, at the rate of nine per cent.
per annum, and the profits, if any, accruing by reason of the improvement shall
be credited to the mortgagor.]
Section 64 - Renewal of mortaged lease
Where the mortgaged
property is a lease [41][
* * ], and the mortgagee obtains a renewal of the lease, the mortgagor, upon
redemption, shall, in the absence of a contract by him to the contrary, have
the benefit of the new lease.
Section 65 - Implied contracts by mortgagor
In the absence of a contract
to the contrary, the mortgagor shall be deemed to contract with the mortgagee--
(a)
that the interest which the mortgagor professes to transfer to the
mortgagee subsists, and that the mortgagor has power to transfer the same;
(b)
that the mortgagor will defend, or, if the mortgagee be in
possession of the mortgaged property, enable him to defend, the mortgagor's
title thereto;
(c)
that the mortgagor will, so long as the mortgagee is not in
possession of the mortgaged property, pay all public charges accruing due in
respect of the property;
(d)
and, where the mortgaged property is a lease [42][
* ], that the rent payable under the lease, the conditions contained therein,
and the contracts binding on the lessee have been paid performed and observed
down to the commencement of the mortgage; and that the mortgagor will, so long
as the security exists and the mortgagee is not in possession of the mortgaged
property, pay the rent reserved by the lease, or, if the lease be renewed, the
renewed lease, perform the conditions contained therein and observe the
contracts binding on the lessee, and indemnify the mortgagee against all claims
sustained by reason of the non-payment of the said rent or the non-performance
or non-observance of the said conditions and contracts;
(e)
and, where the mortgage is a second or subsequent incumbrance on
the property, that the mortgagor will pay the interest from time to time
accruing due on each prior incumbrance as and when it becomes due, and will at
the proper time discharge the principal money due on such prior incumbrance.
[43][ * * ].
The benefit of the
contracts mentioned in this section shah be annexed to and shall go with the
interest of the mortgagee as such, and may be enforced by every person in whom
that interest is for the whole or any part thereof from time to time vested.
Section 65A - Mortgagor's power to lease
[44][(1)
Subject to the, provisions of sub-section (2), a mortgagor, while lawfully in
possession of the mortgaged property, shall have power to make leases thereof
which shall be binding on the mortgagee.
(2) (a)
Every such lease shall be such as would be made in the ordinary course of
management of the property concerned, and in accordance with any local law,
custom or usage.
(b) ???Every such lease shall reserve the best rent
that can reasonably be obtained, and no premium shall be paid or promised and
no rent shall be payable in advance.
(c) ???No such lease shall contain covenant for
renewal.
(d) ???Every such lease shall take effect from a
date not later than six months from the date on which it is made.
(e) ???In the case of a lease of buildings, whether
leased with or without the land on which they stand, the duration of the lease
shall in no case exceed three years, and the lease shall contain a covenant for
payment of the rent and condition of re-entry on the rent not being paid within
a time therein specified.
(3) ??The provisions of sub-section (1) apply only
if and as far as a contrary intention is not expressed in the mortgage-deed;
and the provisions of sub-section (2) may be varied or extended by the
mortgage-deed and, as so varied and extended, shall, as far as may be, operate
in like manner and with all like incidents, effects and consequences, as if
such variations or extensions were contained in that sub-section.]
Section 66 - Waste by mortgagor in possession
A mortgagor in possession
of the mortgaged property is not liable to the mortgagee for allowing the
property to deteriorate; but he must not commit any act which is destructive or
permanently injurious thereto, if the security is insufficient or will be
rendered insufficient by such act.
Explanation.--A security is
insufficient within the meaning of this section unless the value of the
mortgaged property exceeds by one-third, or, if consisting of buildings,
exceeds by one-half, the amount for the time being due on the mortgage.
Section 67 - Right to forclosure or sale
In the absence of a
contract to the contrary, the mortgagee has at any time after the
mortgage-money has become [45][due]
to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has
been paid or deposited as hereinafter provided, a right to obtain from the
Court [a decree] that the mortgagor shall be absolutely debarred of his right
to redeem the property, or [a decree] that the property be sold.
A suit to obtain [a decree]
that a mortgagor shall be absolutely debarred of his right to redeem the
mortgaged property is called a suit for foreclosure.
Nothing in tins section
snail be deemed--
[(a) ?to authorise any
mortgagee, other than a mortgagee by conditional sale or a mortgagee under an
anomalous mortgage by the term of which he is entitled to foreclose, to
institute a suit for foreclosure, or an usufructuary mortgagee as such or a
mortgagee by conditional sale as such to institute a suit for sale; or]
(b) ???to authorise a
mortgagor who holds the mortgagee's rights as his trustee or legal
representative, and who may sue for a sale of the property, to institue a suit
for foreclosure; or
(c)?? ?toauthorise the mortgagee of a railway, canal
or other work in the maintenance of which the public are interested, to
institute a suit for foreclosure or sale; or
(d) ???toauthorise a person
interested in part only of the mortgage-money to institute a suit relating only
to a corresponding part of the mortgaged property, unless the mortgagees nave,
with the consent of the mortgagor, severed their interests under the mortgage.
Section 67A - Mortgagee when bound to bring one suit on several mortgages
[46][A
mortgagee who holds two or more mortgages executed by the same mortgagor in
respect of each of which he has a right to obtain in the same kind of decree
under section 67, and who sues to obtain such decree on any one of the
mortgages, shall, in the absence of a contract to the contrary, be bound to sue
on all the mortgages in respect of which the mortgage-money has become due.]
Section 68 - Right to sue for mortgage-money
[47][(1) The
mortgagee has a right to sue for the mortgage-money in the following cases and
no others, namely:--
(a)
where the mortgagor binds himself to repay the same;
(b)
where, by any cause other than the wrongful act or default of the
mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed
or the security is rendered insufficient within the meaning of section 66, and
the mortgagee has given the mortgagor a reasonable opportunity of providing
further security enough to render the whole security sufficient, and the
mortgagor has failed to do so;
(c)
where the mortgagee is deprived of the whole or part of his
security by or in consequence of the wrongful act or default of the mortgagor;
(d)
where, the mortgagee being entitled to possession of the mortgaged
property, the mortgagor fails to deliver the same to him, or to secure the
possession thereof to him without disturbance by the mortgagor or any person
claiming under a title superior to that of the mortgagor:
Provided that, in the case
referred to in clause (a), a transferee from the mortgagor or from his legal
representative shall not be liable to be sued for the mortgage-money.
(2) ??Where a suit is brought under clause (a) or
clause (b) of sub-section (1), the Court may, at its discretion, stay the suit
and all proceedings therein, notwithstanding any contract to the contrary,
until the mortgagee has exhausted all his available remedies against the mortgaged
property or what remains of it, unless the mortgagee abandons his security and,
if necessary, re-transfers the mortgaged property].
Section 69 - [Omitted]
Omitted.
Section 70 - Accession to mortgaged property
If, after the date of a
mortgage, any accession is made to the mortgaged property, the mortgagee, in
the absence of a contract to the contrary, shall, for the purposes of the
security, be entitled to such accession.
Section 71 - Renewal of mortgaged lease
[48][When the
mortgaged property is a lease [ * * ] and the mortgagor obtains a renewal of
the lease, the mortgagee, in the absence of a contract to the contrary, shall,
for the purposes of the security, be entitled to the new lease.
Section 72 - Rights of mortgagee in possession
[49][A
mortgagee] may spend such money as is necessary--
(a)
Omitted,
(b)
for [the preservation of the mortgaged property] from destruction,
forfeiture or sale;
(c)
for supporting the mortgagor's title to the property;
(d)
for making his own title thereto good against the mortgagor; and
(e)
when the mortgaged property is a renewable leasehold, for the
renewal of the lease;
and may, in the absence of
a contract to the contrary, add such money to the principal money, at the rate
of interest payable on the principal, and where no such rate is fixed, at the
rate of nine per cent. per annum.
[Provided that the
expenditure of money by the mortgagee under clause (b) or clause (c) shall not
be deemed to be necessary unless the mortgagor has been called upon and has
failed to take proper and timely steps to preserve the property or to support
the title.]
Where the property is by
its nature insurable, the mortgagee may also, in the absence of a contract to
the contrary, insure and keep insured against loss or damage by fire the whole
or any part of such property; and the premiums paid for any such insurance
shall bet [added to the principal money with interest at the same rate as is
payable on the principal money or, where no such rate is fixed, at the rate of
nine per cent. per annum.] But the amount of such insurance shall not exceed
the amount specified in this behalf in the mortgage-deed or (if no such amount
is therein specified) two-thirds of the amount that would be required in case
of total destruction to reinstate the property insured.
Nothing in this section
shall be deemed to authorise the mortgagee to insure when an insurance of the
property is kept up by or on behalf of the mortgagor to the amount in which the
mortgagee is hereby authorised to insure.
Section 73 - Right to proceeds of revenue sale or compensatinn on acquisition
[50][(1)
Where the mortgaged property or any part thereof or any interest therein is
sold owing to failure to pay arrears of revenue or other charges of a public
nature or rent due in respect of such property, and such failure did not arise
from any default of the mortgagee, the mortgagee shall be entitled to calim
payment of the mortgage-money in whole or in part, out of any surplus of the
sale proceeds remaining after payment of the arrears and of all charges and
deductions directed by law.
(2) ??Where the mortgaged property or any part
thereof or any interest therein is acquired under the Land Acquisition Act or
any other enactment for the time being in force providing for the compulsory acquisition or immovable
property, the mortgagee shall be entitled to claim payment of the
mortgage-money in whole of in part out of the amount due to the mortgagor as
compensation.
(3) ??Such claims shall prevail against all other
claims except those of prior encumbrancers, and may be enforced notwithstanding
that the principal money on the mortgage has not become due.]
Section 74 - [Omitted]
[51][Omitted.
Section 75 - [Ommited]
[52][Omitted.
Section 76 - Liabilities of mortgagee in possession
When, during the
continuance of the mortgage, the mortgagee takes possession of the mortgaged
property:--
(a)
he must manage the property as a person of ordinary prudence would
manage it if it were his own;
(b)
he must use his best endeavours to collect the rents and profits
thereof;
(c)
he must, in the absence of a contract to the contrary, out of the
income of the property, pay the Government revenue all other charges of a
public nature [53][and
all rent] accruing due in respect thereof during such possession and any
arrears of rent in default of payment of which the property may be summarily
sold;
(d)
he must, in the absence of a contract to the contrary, make such
necessary repairs of the property as he can pay for out of the rents and
profits thereof after deducting from such rents and profits the payments
mentioned in clause (c) and the interest on the principal money;
(e)
he must not commit any act which is destructive or permanently
injurious to the property;
(f)
where he has insured the whole or any part of the property against
loss or damage by fire, he must, in case of such loss or damage, apply any
money which he actually receives under the policy or so much thereof as may be
necessary, in reinstating the property, or, if the mortgagor so directs, in
reduction or discharge of the mortgage-money;
(g)
he must keep clear, full and accurate accounts of all sums
received and spent by him as mortgagee, and, at any time during the continuance
of the mortgage, give the mortgagor, at his request and cost, true copies of
such accounts and of the vouchers by which they are supported;
(h)
his receipts from the mortgaged property, or, where such property
is personally occupied by him, a fair occupation-rent in respect thereof,
shall, after deducting the expenses [54][properly
incurred for the management of the property and the collection of rents and
profits and the other expenses] mentioned in clauses (c) and (d), and interest
thereon, be debited against him in reduction of the amount (if any) from time
to time due to him on account of interest [55][*
* *] and, so far as such receipts exceed any interest due, in reduction or
discharge of the mortgage-money; the surplus, if any, shall be paid to the
mortgagor;
(i)
when the mortgagor tenders, or deposits in manner hereinafter
provided, the amount for the time being due on the mortgage, the mortgagee
must, notwithstanding the provisions in the other clauses of this section,
account for his [56][
* * * ] receipts for the mortgaged property from the date of the tender or from
the earliest time when he could take such amount out of Court, as the case may
be [57][and (shall not be
entitled to deduct any amount therefrom on account of any expenses incurred
after such date or time in connection with the mortgaged property.]
If the mortgagee fail to
performe any of the duties imposed upon him by this section, he may, when
accounts are taken in pursuance of a decree made under this chapter, be debited
with the loss, if any, occasioned by such failure.
Section 77 - Receipts lieu of interest
Nothing in section 76,
clauses (b), (d, (g), and (h), applies to cases where there is a contract
between the mortgagee and the mortgagor that the receipts from the mortgaged
property shall, so long as the mortgagee is in possession of the property, be
taken in lieu of interest on the principal money, or in lieu of such interest
and defined portions of the principal.
Section 78 - Postponement of prior mortgagee
Where, through the fraud,
misrepresentation or gross neglect of a prior mortgagee, another person has
been induced to advance money on the security of the mortgaged property the
prior mortgagee shall be postponed to the subsequent mortgagee
Section 79 - Mortgage to secure uncertain amount when maximum is expressed
If a mortgage made to
secure future advances, the performance of an engagement or the balance of a
funning account, expresses the maximum to be secured thereby, a subsequent
mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage
in respect of all advances or debits not exceeding the maximum though made or
allowed with notice of the subsequent mortgage.
Section 80 - [Omitted]
[58][Omitted.
Section 81 - Marshalling Securities
[59][If the
owner of two or more properties mortgages them to one person and then mortgages
one or more of the properties to another person, the subsequent mortgagee is,
in the absence of a contract to the contrary, entitled to have the prior
mortgage-debt satisfied out of the property or properties not mortgaged to him,
so far as the same will extend, but not so as to prejudice the rights of the
prior mortgagee or of any other person who has for consideration acquired an
interest in any of the properties.]
Section 82 - Contribution to mortgage-debt
[60][Where
property subject to a mortgage belongs to two or more persons having distinct
and separate rights of ownership therein the different shares in or parts of
such property owned by such persons are, in the absence of a contract to the
contrary, liable to contribute rate-ably to the debt secured by the mortgage,
and, for the purpose of determining the rate at which each such share or part
shall contribute, the value thereof shall be deemed to be its value at the date
of the mortgage after deduction of the amount of any other mortgage or charge
to which it may have been subject on the date.]
Where, of two properties
belonging to the same owner, one is mortgaged to secure one debt and then both
are mortgaged to secure another debt, and the former debt is paid out of the
former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to
the latter debt after deducting the amount of the former debt from the value of
the property out of which it has been paid.
Nothing in this section
applies to a property liable under section 81 to the claim of the [subsequent]
mortgagee.
Section 83 - Power to deposit in Court money due on mortgage
At any time after the
principal money [61][payable
in respect of any mortgage has become due] and before a suit for redemption of
the mortgaged property is barred, the mortgagor, or any other person entitled
to institute such suit, may deposit, in any Court in which he might have
instituted such suit to the account of the mortgagee, the amount remaining due
on the mortgage.
The Court shall thereupon
cause written notice of the deposit to be served on the mortgagee, and the
mortgagee may, on presenting a petition (verified in manner prescribed by law
for the verification of plaints) stating the amount then due on the mortgage,
and his willingness to accept the money so deposited in full discharge of such
amount, and on depositing in the same Court the mortgage-deed [62][and
all documents in his possession or power relating to the mortgaged property],
apply for and receive the money, and the mortgage-deed [63][and
all such other documents] so deposited shall be delivered to the mortgagor or
such other person as aforesaid.
[64][Where
the mortgagee is in possession of the mortgaged property, the Court shall,
before paying to him the amount so deposited, direct him to deliver possession
thereof to the mortgagor and at the cost of the mortgagor either to re-transfer
the mortgaged property to the mortgagor or to such third person as the
mortgagor may direct or to execute and (where the mortgage has been effected by
a registered instrument) have registered an acknowledgment in writing than any
right in derogation of the mortgagor's interest transferred to the mortgagee
has been extinguished.]
Section 84 - Cessation of interest
When the mortgagor or such
other person as aforesaid has tendered or deposited in court under section 83
the amount remaining due on the mortgage, interest on the principal money shall
cease from the date of the tender or [65][in
the case of a deposit, where no previous tender of such amount has been made]
as soon as the mortgagor or such other, person as aforesaid has done all that
has to be done by him to enable the mortgagee to take such amount out of
Court, [66][and the notice required
by section 83 has been served on the mortgagee:
Provided that, where the
mortgagor has deposited such amount without having made a previous tender
thereof and has subsequently withdrawn the same or any part thereof, interest
on the principal money shall be payable from the date of such withdrawal.]
Nothing in this section or
in section 83 shall be deemed to deprive the mortgagee of his right to interest
when there exists a contract that he shall be entitled to reasonable notice
before payment or tender of the mortgage-money [67][and
such notice has not been given before the making of the tender or deposit, as
the case may be.]
Section 85 - [Omitted]
Omitted.
Section 86 - [Omitted]
Omitted.
Section 87 - [Omitted]
Omitted.
Section 88 - [Omitted]
Omitted.
Section 89 - [Omitted]
Omitted.
Section 90 - [Omitted]
Omitted.
Section 91 - Persons who may sue for redemption
[68][Besides
the mortgagor, any of the following persons may redeem, or institute a suit for
redemption of, the mortgaged property, namely:--
(a)
any person (other than the mortgagee of the interest sought to be
redeemed) who has any interest in, or charge upon, the property mortgaged or in
or upon the right to redeem the same;
(b)
any surety for the payment of the mortgage-debt or any part
thereof; or
(c)
any creditor of the mortgagor who has in a suit for the
administration of his estate obtained a decree for sale of the mortgaged
property.]
Section 92 - Subrogation
[69][Any of
the persons referred, to in section 91 (other than the mortgagor) and any
co-mortgagor shall, on redeeming property subject to the mortgage, have, so far
as regards redemption, foreclosure or sale of such property, the same rights as
the mortgagee whose mortgage he redeems may have against the mortgagor or any
other mortgagee.
The right conferred by this
section is called the right of subrogation, and a person acquiring the same is
said to be subrogated to the rights of the mortgagee whose mortgage he redeems.
A person who has advanced
to a mortgagor money with which the mortgage has been redeemed shall be
subrogated to the rights of the mortgagee whose mortgage has been redeemed, if
the mortgagor has by a registered instrument agreed that such persons shall be
so subrogated.
Nothing in this section
shall be deemed to confer a right of subrogation on any person unless the
mortgage in respect of which the right is claimed has been redeemed in full.]
Section 93 - Prohibition of tacking
[70][No
mortgagee paying off a prior mortgage, whether with or without notice of an
intermediate mortgage, shall thereby acquire any priority in respect of his
original security; and, except in the case provided for by section 79, no
mortgagee making a subsequent advance to the mortgagor, whether with or without
notice of an intermediate mortgagor, shall thereby acquire any priority in
respect of his security for such subsequent advance.]
Section 94 - Rights of Mesne Mortgagee
[71][Where a
property is mortgaged for successive debts to successive mortgagees, a mesne
mortgagee has the same rights against mortgagees posterior to himself as he has
against the mortgagor.]
Section 95 - Right of redeeming co-mortgagor to expenses
[72][Where
one of the several mortgagors redeemed the mortgaged property, he shall, in
enforcing his right of subrogation under section 92 against his co-mortgagors
be entitled to add to the mortgage-money recoverable from them such proportion
of the expenses properly incurred in such redemption as is attributable to
their share in the property.] 96 and 97. Omitted.
Section 96 - [Omitted]
Omitted
Section 97 - [Omitted]
Omitted
Section 98 - Mortgage not described in section 58, clauses (b), (c), (d) & (e)
[73][In the
case of [an anomalous mortgage], the rights and liabilities of the parties
shall be determined by their contract as evidenced in the mortgage-deed, and,
so far as such contract does not extend, by local usage.
Section 99 - [Omitted]
Omitted.
Section 100 - Charges
Where immovable property of
one person is by act of parties or operation of law made security for the
payment of money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and all the
provisions hereinbefore contained [74][which
apply to a simple mortgage shall, so far as may be, apply to such charge.]
Nothing in this section
applies to the charge of a trustee on the trust property for expenses properly
incurred in the execution of his trust [75][and,
save as otherwise expressly provided by any law for the time being in force, no
change shall be enforced against any property in the hands of a person to whom
such property has been transferred for consideration and without notice of the
charge.]
Scheme 101 - No merger in case of subsequent encumbrance
[76][Any
mortgage of, or person having a charge upon, immovable property, or any
transferee from such mortgagee or charge-holder, may purchase or otherwise
acquire the rights in the property of the mortgagor or owner, as the case may
be, without thereby causing the mortgage or charge to be merged as between
himself and any subsequent mortgagee of, or person having a subsequent charge
upon, the same property; and no such subsequent mortgagee or charge-holder
shall be entitled to foreclose or sell such property without redeeming the
prior mortgage or charge, or otherwise than subject thereto.]
Section 102 - Service or tender on or to agent
Where the person on or to
whom any notice or tender is to be served or made under this chapter does not
reside in the district in which the mortgaged property or some part thereof is
situate, service or tender on or to an agent holding a general power of
attorney from such person, or otherwise duly authorised to accept such service
or tender shall be deemed sufficient.
[77][Where no
person or agent on whom such notice should be served can be found or is known], to the person required to
serve the notice, the latter person may apply to any Court in which a suit
might be brought for redemption of the mortgaged property, and such Court shall
direct in what manner such notice shall be served, and any notice served in
compliance with such direction shall be deemed sufficient.
[78][Provided
that, in the case of a notice required by section 83, in the case of deposit,
the application shall be made to the Court in which the deposit has been made.]
[79][Where no
person or agent to whom such tender should be made can be found or is known] to
the person desiring to make the tender, the latter person may deposit [80][in
any Court in which a suit might be brought for redemption of the mortgaged
property] the amount sought to be tendered, and such deposit shall have the
effect of a tender of such amount.
Section 103 - Notice, etc., to or by person incompetent to contract
[81][Where,
under the provisions of this chapter, a notice is to be served on or by, or a
tender or deposit made or accepted or taken out of Court by, any person
incompetent to contract, such notice may be served, [on or by] or tender or
deposit made, accepted or taken, by the legal curator of the property of such
person; but where there is no such curator, and it is requisite or desirable in
the interests of such person that a notice should be served or a tender or
deposit made under the provisions of this chapter, application may be made to
any Court in which a suit might be brought for the redemption of the mortgage
to appoint a guardian ad litem for the purposes of serving or receiving service
of such notice, or making or accepting such tender, or making or taking out of
Court such deposit, and for the performance of all consequential acts which
could or ought to be done by such person if he were competent to contract; and
the provisions of Order XXXII 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 thereunder.
Section 104 - Power to make rules
The High Court may, from
time to time, make rules consistent with this Act for carrying out, in itself
and in the Courts of Civil Judicature subject to its superintendence, the
provisions contained in this chapter.
Section 105 - Lease defined
A lease of immovable
property is a transfer of a right to enjoy such property, made for a certain
time, express or implied, or in perpetuity, in consideration of a price paid or
promised, or of money, share of crops, service of 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 transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so rendered is
called the rent.
Section 106 - Duration of certain leases in absence of written contract or local usage
In the absence of a
contract or local law or usage to the contrary, a lease of immovable property
for agricultural or manufacturing purposes shall be deemed to be a lease from
year to year, terminable, on the part of either lessor or lessee, by six
months' notice expiring with the end of a year of the tenancy; and a lease of
immovable property for any other purpose shall be deemed to be a lease from
month to month, terminable, on the part of either lessor or lessee, by fifteen
days' notice expiring with the end of a month of the tenancy.
Every notice under this
section must be in writing signed by or on behalf of the person giving it,
and [82][either be sent by post to
the party who is intended to be bound by it or be tendered or delivered personally
to such party] or to one of his family or servants at his residence, or (if
such tender or delivery is not practicable) affixed to a conspicuous part of
the property.
Section 107 - Leases how made
A lease of immovable
property for any term exceeding one year, and reserving a yearly rent,
exceeding rupees fifty can be made only by a registered instrument.
All other leases of
immovable property may be made either by a registered instrument or by oral
agreement accompanied by delivery of possession:
Provided that [83][Government]
may, from time to time, by notification in the Jammu and Kashmir Government
Gazette, direct
that leases of immovable property, other than leases for any term exceeding one
year, and reserving a yearly rent exceeding rupees fifty or any class of such
leases, may be made by unregistered instrument or by oral agreement without
delivery of possession.
Section 108 - Rights and liabilities of lessor and lessee
In the absence of a
contract or local usage to the contrary, the lessor and lessee of immovable
property, as against one another, respectively, possess the rights and are
subject to the liabilities mentioned in the rules next following, or such of
them as are applicable to the property leased:--
(A)
Rights and Liabilities of the Lessor.
(a)
The lessor is bound to disclose to the lessee any material defect
in the property, with reference to its intended use, of which the former is and
the latter is not aware, and which the latter could not with ordinary care
discover:
(b)
the lessor is bound on the lessee's request to put him in
possession of the property:
(c)
the lessor shall be deemed to contract with the lessee that, if
the latter pays the rent reserved by the lease and performs the contracts
binding on the lessee, he may hold the property during the time limited by the
lease without interruption.
The benefit of such
contract shall be annexed to and go with the lessee's interest as such, and may
be enforced by every person in whom that interest is for the whole or any part
thereof from time to time vested.
(B)
Rights and Liabilities of the Lessee.
(d) If during
the continuance of the lease any accession is made to the property, such
accession (subject to the law relating to alluvion for the time being in force)
shall be deemed to be comprised in the lease:
(e)
if by fire, temptest or flood, or violence of an army or of a mob
or other irresistible force, any material part of the property be wholly
destroyed or rendered substantially and permanently unfit for the purposes for
which it was let, the lease shall, at the option of the lessee, be void:
Provided that, if the
injury be occasioned by the wrongful act or default of the lessee, he shall not
be entitled to avail himself of the benefit of this provision:
(f) if the
lessor neglects to make, within a reasonable time after notice, any repairs
which he is bound to make, to the property, the lessee may make the same
himself, and deduct the expense of such repairs with interest from the rent, or
otherwise recover it from the lessor:
(g) if the
lessor "neglects to make any payment which he is bound to make, and winch
if not made by him, is recoverable from the lessee or against the property, the
lessee may make such payment himself, and deduct it with interest from the
rent, or otherwise recover it from the lessor:
(h)
the lessee may [84][even
after the deterioration of the lease] remove, at any time [85][whilst
he is in possession of the property leased but not afterwards], all things
which he has attached to the earth: provided he leaves the property in the
state in which he received it:
(i) when a
lease of uncertain duration determines by any means except the fault of the
lessee, he or his legal representative is entitled to all the crops planted or
sown by the lessee and growing upon the property when the lease determines, and
to free ingress and egress to gather and carry them:
(j)
the lessee may transfer absolutely or by way of mortgage or
sub-lease the whole or any part of his interest in the property, and any
transferee of such interest or party 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, or which the lessee is, and
the lessor is not, aware, and which materially increases the value of such
interest:
(l) the
lessee is bound to pay or tender, at the proper time and place, the premium or
rent to the lessor or his agent in this behalf:
(m)
the lessee is bound to keep, and on the termination of the lease
to restore, the property in as good condition as it was in at the time when he
was put in possession, subject only to the changes caused by reasonable wear
and tear or irresistible force, and to allow the lessor and his agents, at all
reasonable times during the term, to enter upon the property and inspect the
condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by
any act or default on the part of the lessee, his servants or agents, he is
bound to make it good within three months after such notice has been given or
left:
(n)
it 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:
[86](o) ?the lessee may use the property and its
products (if any) as a person of ordinary prudence would use them if they were
his own; but he must not use, or permit another to use, the property for a
purpose other than that for which it was leased, or fell [or sell] timber, pull
down or damage buildings, [belonging to the lessor or] work mines or queries
not open when the lease was granted, or commit any other act which is
destructive or permanently injurious thereto:
(p)? ?he
must not, without the lessor's consent, erect on the property any permanent
structure, except for agricultural purposes:
(q) ??on the determination of the lease, the lessee
is bound to put the lessor into possession of the property.
Section 109 - Rights of lessor's transferee
If the lessor transfers the
property leased, or any part thereof, or any part of his interest therein, the
transferee, in the absence of a contract to the contrary, shall possess all the
rights, and, if the lessee so elects, be subject to all the liabilities, of the
lessor as to the property or part transferred so long as he is the owner of it;
but the lessor shall not, by reason only of such transfer, cease to be subject
to any of the liabilities imposed upon him by the lease, unless the lessee
elects to treat the transferee as the person liable to him:
Provided that the
transferee is not entitled to arrears of rent due before the transfer, and
that, if the lessee, not having reason to believe that such transfer has been
made, pays rent to the lessor, the lessee shall not be liable to pay such rent
over again to the transferee.
The lessor, the transferee
and the lessee may determine what proportion of the premium or rent reserved by
the lease is payable in respect of the part so transferred, and, in case they
disagree, such determination may be made by any Court having jurisdiction to
entertain a suit for the possession of the property leased.
Section 110 - Exclusion of day on which term commences
Where the time limited by a
lease of immovable property is expressed as commencing from a particular day,
in computing that time such day shall be excluded. Where no day of commencement
is named, the time so limited begins from the making of the lease.
Where the time so limited
is a year or a number of years, in the absence of an express agreement to the
contrary, the lease shall last during the whole anniversary of the day from
which such time commences.
Where the time so limited
is expressed to be terminable before its expiration, and the lease omits to
mention at whose option it is so terminable, the lessee, and not the lessor,
shall have such option.
Section 111 - Determination of lease
A lease of immovable
property determines--
(a)
by efflux of the time limited thereby:
(b)
where such time is limited conditionally on the happening of some
event--by the happening of such event:
(c)
where the interest of the lessor in the property terminates on, or
his power to dispose of the same extends only to, the happening of any
event--by the happening of such event:
(d)
in case the interests of the lessee and the lessor in the whole of
the property become vested at the same time in one person in the same right:
(e)
by express surrender; that is to say, in case the lessee yields up
his interest under the lease to the lessor, by mutual agreement between them:
(f)
by implied surrender:
(g)
by forfeiture; that is to say, (1) in case the lessee breaks an
express condition which provides that on breach thereof the lessor may
re-enter [87][ * * ] or (2) in case the
lessee renounces his character as such by setting up a title in a third person
or by claiming title in himself [88][or
(3) the lessee is adjudicated an insolvent and the lease provides that the
lessor may re-enter on the happening of such event;] and in [89][any
of these cases] the lessor or his transferee [90][gives
notice in writing to the lessee of] his intention to determine the lease:
(h)
on the expiration of a notice to determine the lease, or to quit,
or of intention to quit, the property leased, duly given by one party to the other.
Section 112 - Waiver of forfeiture
A forfeiture under section
in, clause (g), is waived by acceptance of rent which has become due since the
forfeiture, or by distress for such rent, or by any other act on the part of
the lessor showing an intention to treat the lease as subsisting:
Provided that the lessor is
aware that the forfeiture has been incurred:
Provided also that, where
rent is accepted after the institution of a suit to eject the lessee on the
ground of forfeiture, such acceptance is not a waiver.
Section 113 - Waiver of notice to quit
A notice given under
section III, clause (h), is waived, with the express or implied consent of the
person to whom it is given, by any act on the part of the person giving it
showing an intention to treat the lease as subsisting.
Section 114 - Relief against forfeiture for non-payment of rent
Where a lease of immovable
property has determined by forfeiture for non-payment of rent, and the lessor
sues to eject the lessee, if, at the hearing of the suit, the lessee pays or
tenders to the lessor the rent in arrear, together with interest thereon and
his full costs of the suit, or gives such security as the Court thinks
sufficient for making such payment within fifteen days, the Court may, in lieu
of making a decree for ejectment, pass an order relieving the lessee against
the forfeiture; and thereupon the lessee shall hold the property leased as if
the forfeiture had not occurred.
Section 114A - Relief against forfeiture in certain other cases
[91][Where a
lease of immovable property has determined by forfeiture for a breach of an
express condition which provides that on breach thereof the lessor may
re-enter, no suit for ejectment shall lie unless and until the lessor has
served on the
lessee a notice in writing--
(a)
specifying the particular breach complained of; and
(b)
if the breach is capable of remedy, requiring the lessee to remedy
the breach; and the lessee fails within a reasonable time from the date of the
service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section
shall apply to an express condition against the assigning, under-letting,
parting with the possession, or disposing, of the property leased, or to an
express condition relating to forfeiture in case of non-payment of rent.]
Section 115 - Effect of surrender of forfeiture on underlessee
The surrender, express or
implied, of a lease of immovable property does not prejudice an under-lease of
the property or any part thereof previously granted by the lessee, on terms and
conditions substantially the same (except as regards the amount of rent) as
those of the original lease; but, unless the surrender is made for the purpose
of obtaining a new lease, the rent payable by, and the contracts binding on,
the under-lessee shall be respectively payable to and enforceable by the
lessor.
The forfeiture of such a
lease annuls all such under-leases, except where such forfeiture has been
procured by the lessor in fraud of the under-lessees, or relief against the
forfeiture is granted under section 114.
Section 116 - Effect of holding over
If a lessee or under-lessee
of property remains in possession thereof after the determination of the lease
granted to the lessee, and the lessor or his legal representative accepts rent
from the lessee or under-lessee, or otherwise assents to his continuing in
possession, the lease is, in the absence of an agreement to the contrary,
renewed from year to year, or from month to month, according to the purpose for
which the property is leased, as specified in section 106.
Section 117 - Exemption of cases for agricultural purposes
None of the provisions of
this chapter apply to leases for agricultural purposes, except in so far
as [92][Government] may by
notification published in the Jammu and Kashmir Government Gazette declare all or any of such provisions
to be so applicable in the case of all or any of such leases, together with, or
subject to, those of the local law, if any, for the time being in force.
Such notification shall not
take effect until the expiry of six months from the date of its publication.
Section 118 - "Exchange" defined
When two persons mutually
transfer the ownership of one thing for the ownership of another, neither thing
nor both things being money only, the transaction is called an
"exchange."
A transfer of property in
completion of an exchange can be made only in manner provided for the transfer
of such property by sale.
Section 119 - Right of party deprived of thing received in exchange
[93][If any
party to an exchange or any person claiming through or under such party is by
reason of any defect in the title of the other party deprived of the thing or
any part of the thing received by him in exchange, then, unless a contrary
intention appears from the terms of the exchange, such other party is liable to
him or any person claiming through or under him for loss caused thereby or at
the option of the person so deprived, for the return of the thing transferred
if still in the possession of such other party or his legal representative or a
transferee from him without consideration.]
Section 120 - Rights and liabilities of parties
Save as otherwise provided
in this chapter, each party has the rights and is subject to the liabilities of
a sellor as to that which he gives, and has the rights and is subject to the
liabilities of a buyer as to that which he takes.
Section 121 - Exchange of money
On an exchange of money,
each party thereby warrants the genuineness of the money given by him.
Section 122 - "Gift" defined
"Gift" is the
transfer of certain existing movable or immovable property made vountarily and
without consideration, by one person, called the donor, to another, called the
donee, and accepted by or on behalf of the donee.
Such acceptance must be
made during the life time of the donor and while he is still capable of giving.
If the donee dies before
acceptance, the gift is void.
Section 123 - Transfer how effected
For the purpose of making a
gift of immovable property, the transfer must be effected by a registered
instrument signed by or on behalf of the donor, and attested by at least two
witnesses.
For the purpose of making a
gift of movable property, the transfer may be effected either by a registered
instrument signed as aforesaid or by delivery.
Such delivery may be made
in the same way as goods sold may be delivered.
Explanation.--The word
attest has the same meaning in this section as in section 59.
Section 124 - Gift of existing and future property
A gift comprising both
existing and future property is void as to the latter.
Section 125 - Gift to several, of whom one does not accept
A gift of a thing to two or
more donees, of whom one does not accept it, is void as to the interest which
he would have taken had he accepted.
Section 126 - When gift may be suspended or revoked
The donor and donee may
agree that on the happening of any specified event which does not depend on the
will of the donor a gift shall be suspended or revoked; but a gift which the
parties agree shall be revocable wholly or in part, at the mere will of the
donor, is void wholly or in part, as the case may be.
A gift may also be revoked
in any of the cases (save want or failure of consideration) in which, if it
were a contract, it might be rescinded.
Save as aforesaid, a gift
cannot be revoked.
Nothing contained in this
section shall be deemed to affect the rights of transferees for consideration
without notice.
Section 127 - Onerous gifts
Where a gift is in the form
of a single transfer to the same person of several things of which one is, and
the others are not, burdened by an obligation, the donee can take nothing by
the gift unless he accepts it fully.
Where a gift is in the form
of two or more separate and independent transfers to the same person of several
things, the donee is at liberty to accept one of them and refuse the others,
although the former may be beneficial and the latter onerous.
A donee not competent to
contract and accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware of the
obligation, he retains the property given, he becomes so bound.
Section 128 - Universal donee
[94][Subject
to the provisions of section 127, where a gift consists of the donor's whole
property, the donee is personally liable for all the debts due by [and
liabilities of] the donor at the time of the gift to the extent of the property
comprised therein.
Section 129 - Saving of donations mortis and Mohammadan law
Nothing in this chapter
relates to gifts of movable property made in contemplation of death, or shall
be deemed to affect save as provided by section 123, any rule of Hindu, Mohammadan
or Buddhist law.
Section 130 - Transfer of actionable claims
[95][(1) The
transfer of an actionable claim [whether with or without consideration] shall
be effected only by the execution of an instrument in writing signed by the
transferor or his duly authorised agent, and shall be complete and effectual
upon the execution of such instrument, and thereupon all the rights and
remedies of the transferor, whether by way of damages or otherwise, shall vest
in the transferee, whether such notice of the transfer as is hereinafter
provided be given or not:
Provided that every dealing
with the debt or other actionable claim by the debtor or other person from or
against whom the transferor would, but-for such instrument of transfer as
aforesaid, have been entitled to recover or enforce such debt or other
actionable claim, shall (save where the debtor or other person is a party to
the transfer or has received express notice thereof as hereinafter provided) be
valid as against such transfer.
(2) ??The transferee of an actionable claim may,
upon the execution of such instrument of transfer as aforesaid, sue or
institute proceedings for the same in his own name without obtaining the
transferor's consent to such suit or proceedings and without making him a party
thereto.
Exception.--Nothing in this
section applies to the transfer of t marine or fire policy of insurance.
Section 131 - Notice o be in writ big, signd
Every notice of transfer of
an actionable claim shall be in writing, signed by the transferor or his agent
duly authorised in this behalf, or, in case the transferor refuses to sign, by
the transferee or his agent, and shall state the name and addres of the
transferee.
Section 132 - Liability of transferee of actionable claim
The transferee of an
actionable claim shall take it subject to all the liabilities and equities to
which the transferor was subject in respect thereof at the date of the
transfer.
Section 133 - Warranty of solvency of debtor
Where the transferor of a
debt warrants the solvency of the debtor, the warranty, in the absence of a
contract to the contrary, applies only to his solvency at the time of the
transfer, and is limited, where the transfer is made for consideration, to the
amount or value of such consideration.
Section 134 - Mortgaged debt
Where a debt is transferred
for the purpose of securing an existing or future debt, the debt so transferred
if received by the transferor or recovered by the transferee, is applicable,
first, in payment of the costs off such recovery: secondly in or cowards
satisfaction of the amount for the time being secured by the transfer, and the
residue, if any, belongs to the transferor or other person entitled to receive
the same.
Section 135 - Assignment of rights under marine or fire policy of insurance
Every assignee, by
endorsement or other writing, of a policy of marine insurance or of a policy of
insurance against fire, in whom the property in the subject insured shall be
absolutely vested at the date of the assignment, shall have transferred and
vested in him all rights of suit as if the contract contained in the policy had
been made with himself.
Section 136 - Incapacity of officers connected with Courts of Justice
No Judge, legal
practitioner, or officer connected with any Court of Justice shall buy or traffic
in, or stipulate for, or agree to receive, any share of, or interest in any
actionable claim, and no Court of Justice shall enforce, at his instance, or at
the instance of any person claiming by or through him, any actionable claim so
dalt with by him as aforesaid.
Section 137 - Saving of negotiable instruments, etc.
Nothing in the foregoing
sections of this chapter applies to stocks, shares, or debentures, or to
instruments which are for the time being, by law or custom, negotiable, or to
any mercantile document of title to goods.
Explanation.--The
expression "mercantile document of title to goods" includes a bill of
lading, dock-warrant, warehouse-keeper's certificate, railway receipt, warrant
or order for the delivery of goods, and any other document used in the ordinary
course of business as proof of the possession or control of goods, or
authorising or purporting to authorise, either by endorsement or by delivery,
the possessor of the document to transfer or receive goods thereby represented.
Section 138 - Section 138
(1)
No transfer of immovable property, except in case governed by any
special law to the contrary, shall be valid unless and until it is in writing
registered and [96][the
registration thereof has been completed in accordance with sub-section (3) of
section 61 of the Registration Act 1977].
(2)
No Court shall entertain a suit for pre-emption in respect of
transfer of any such immovable property unless the transfer complies with the
provision of sub-section (1).
(3)
No person shall take possession of, or commence to build or build
on, any land in the Province of Kashmir which has been transferred or has been
contracted to be transferred to him unless and until such transfer becomes
valid under the provisions of sub-section (1).
(4)
No person who has obtained a transfer of immovable property
referred to in sub-section (1) shall apply for and obtain from any Revenue or
Settlement Officer or Court any alteration in any existing entry in any
Settlement Record and paper, unless such person produces before such officer or
Court a duly executed registered instrument [97][the
registration whereof has been completed in the manner specified in sub-section
(1)].
And no such officer or
Court shall alter or cause to be altered any such entry except upon the production
of an instrument registered 1[in the aforesaid manner]:
Provided that nothing in
this section applies to a lease of agricultural land for one year or to a lease
of any other land for a period not exceeding seven years.
Provided also that nothing
in sub-sections (3) and (4) shall be deemed to apply to transfers by will or by
any rule of intestate succession or by the operation of the law of
survivorship.
Section 139 - Omitted
139.
Saving of certain Regulations, Hidayat, Resolution etc
[98][***]
Section 140 - Omitted
140.
Exemptions of certain instruments from restriction imposed on transfer of
immovable property
[99][***]
Schedule I - [Omitted]
THE SCHEDULE--
Omitted.
[1] In
section 3 definition of "attested" added and definition of
"notice" substituted vide Act VI of 1996 published in the Government
Gazette dated 24th Sawan 1996.
[2] In
section 3 definition of "attested" added and definition of
"notice" substituted vide Act VI of 1996 published in the Government
Gazette dated 24th Sawan 1996.
[3] In
section 5 words "or to himself" inserted after the words "or to
himself" and paragraph added vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[4] In section
5 words "or to himself" inserted after the words "or to
himself" and paragraph added vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[5] In
section 5 words "or to himself" inserted after the words "or to
himself" and paragraph added vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[6] In
section 6 clause (dd) added vide Act VI of 1996 published in the Government
Gazette dated 26th Sawan 1996.
[7] In
section II second paragraph substituted vide Act VI of 1996 published is the
Government Gazette dated 26th Sawan 1996.
[8] In
section 15 last words substituted for "as regards the whole class"
vide Act VI of 1996 published in the Government Gazette dated 26th Sawan 1996.
[9] Sections
16, 17 and 18 substituted vide Act VI of 1996 published in the Government
Gazette dated 26th Sawan 1996.
[10] See
footnote under section 16.
[11] See
footnote under section 16.
[12] In
section 39 words "with the intention of defeating such right" omitted
and for the words "of such intention" the word "thereof"
substituted; illustration omitted vide Act VI of 1996.
[13] In
section 39 words "with the intention of defeating such right" omitted
and for the words "of such intention" the word "thereof"
substituted; illustration omitted vide Act VI of 1996.
[14] In
section 40 words in brackets substituted for the words "of the latter
property or to compel its enjoyment in a particular manner" vide Act VI of
1996 published in Government Gazette dated 26th Sawan 1996.
[15] In
section 43 words in brackets inserted vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[16] In
section 52 words "pendency" and "any" substituted for
"active prosecution" and "a contentions" respectively;
other words in brackets inserted and Explantion added vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[17] Section
53 substituted vide Act VI of 1996 published in the Government Gazette dated
26th Sawan 1996.
[18] In section 55(1) (a) words in
brackets inserted vide Act V I of 1996 published is the Government Gazette
dated 26th Sawan 1996.
[19] In section 55(1) (a) words in
brackets inserted vide Act V I of 1996 published is the Government Gazette
dated 26th Sawan 1996.
[20] ?In section 55(4) (b) words in brackets
inserted vide Act VI of 1996 published in the Government Gazette dated 26th
Sawan 1996.
[21] ?In section 55(4) (b) words in brackets
inserted vide Act VI of 1996 published in the Government Gazette dated 26th
Sawan 1996.
[22] In section 55(6) (b) words "with
notice of the payment" omitted vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[23] Section
56 substituted vide Act VI of 1996 published in the Government Gazette dated
26th Sawan 1996.
[24] ?In section 58 in clause (a) "(if
any)" omitted, proviso to clause (c) added and in clause (d) first words
in brackets inserted vide Act VI of 1996 published in the Government Gazette
dated 26th Sawan 1996.
[25] ?In section 58 in clause (a) "(if
any)" omitted, proviso to clause (c) added and in clause (d) first words
in brackets inserted vide Act VI of 1996 published in the Government Gazette
dated 26th Sawan 1996.
[26] ?In section 58 in clause (a) "(if
any)" omitted, proviso to clause (c) added and in clause (d) first words
in brackets inserted vide Act VI of 1996 published in the Government Gazette
dated 26th Sawan 1996.
[27] In section 58, clause (d) line
seventh and eighth words in brackets substituted for the words "and to
appropriate them" and in line ninth word "or" substituted for
"and" vide Act VI of 1996 published in the Government Gazette dated
26th 1996.
[28] In section 58, clause (d) line
seventh and eighth words in brackets substituted for the words "and to
appropriate them" and in line ninth word "or" substituted for
"and" vide Act VI of 1996 published in the Government Gazette dated
26th 1996.
[29] In
section 60 "due" substituted for "payable," words in
brackets in line live substituted for the words "the mortgage deed, if
any, to the mortgagor", words "(where the mortgage has been effected
by a registerd deed)" omitted, word "decree" substituted for
"under" and word "only" inserted vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[30] In
section 60 "due" substituted for "payable," words in
brackets in line live substituted for the words "the mortgage deed, if
any, to the mortgagor", words "(where the mortgage has been effected
by a registerd deed)" omitted, word "decree" substituted for
"under" and word "only" inserted vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[31] In
section 60 "due" substituted for "payable," words in
brackets in line live substituted for the words "the mortgage deed, if
any, to the mortgagor", words "(where the mortgage has been effected
by a registerd deed)" omitted, word "decree" substituted for
"under" and word "only" inserted vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[32] In
section 60 "due" substituted for "payable," words in
brackets in line live substituted for the words "the mortgage deed, if
any, to the mortgagor", words "(where the mortgage has been effected
by a registerd deed)" omitted, word "decree" substituted for
"under" and word "only" inserted vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[33] In
section 60 "due" substituted for "payable," words in
brackets in line live substituted for the words "the mortgage deed, if
any, to the mortgagor", words "(where the mortgage has been effected
by a registerd deed)" omitted, word "decree" substituted for
"under" and word "only" inserted vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[34] Sections
60-A and 60-B added and section 61 substituted vide Act VI of 1996.
[35] See
footnote under section 6o-A.
[36] See
footnote under section 6o-A.
[37] ?Inserted Vide Act VI of 1996.
[38] Substituted for the words "the
interest of the principal money" vide Act VI of 1996.
[39] Substituted for the words "the
principal money" vide Act VI of 1996.
[40] Section
63-A added and in section 64 words "for a term of years" omitted vide
Act VI of 1996 published in the Government Gazette dated 26th Sawan 1996.
[41] See
footnote under section 63-A.
[42] *In
section 65 clause (d) words "for a term of years" omitted and after
clause (e) following words omitted "Nothing in clause (c) or in clause
(d), so far as it relates to the payment of future rent, applies in the case of
an usufructuary mortgage" vide Act VI of 1996 published in the Government
Gazette date 26th Sawan 1996.
[43] *In
section 65 clause (d) words "for a term of years" omitted and after
clause (e) following words omitted "Nothing in clause (c) or in clause
(d), so far as it relates to the payment of future rent, applies in the case of
an usufructuary mortgage" vide Act VI of 1996 published in the Government
Gazette date 26th Sawan 1996.
[44] Section
65-A added vide Act VI of 1996.
[45] In
section 67, clause (a) substituted, "due" substituted for "payable"
and "a decree" substituted for "an order" in three places
vide Act VI of 1996 published in the Government Gazette dated 26th Sawan 1996.
[46] Section
67-A added and section 68 substituted vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[47] Section
67-A added and section 68 substituted vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[48] In
section 71 "words for a term of year" omitted vide Act VI of 1996.
[49] In
section 72 "A mortgagee" substituted for the words "When, during
the continuance of the mortgage, the mortgagee takes possession of the
mortgaged property, he"; clause (a) omitted; in clause (b) words in
brackets substituted for "its preservation"; proviso added and words
in brackets after the proviso substituted for the words "a charge on the
mortgaged property, in addition to the principal money, with the same priority
and with interest at the same rate" vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[50] Section
73 substituted and sections 74 and 75 omitted vide Act VI of 1996 published in
the Government Gazette dated 26th Sawan 1996.
[51] See
footnote under section 73.
[52] See
footnote under section 73.
[53] Words in brackets in clause (c)
inserted vide Act VI of 1996 published in the Government Gazette dated 26th
Sawan 1996.
[54] In clause (h) words in brackets are
inserted, and words "n the mortgage money" are deleted vide Act VI of
1996 published in the Government Gazette dated 26th Sawan 1996.
[55] ?In clause (i) word "gross" omitted
and words in brackets added vide Act VI of 1996 published in the Government
Gazette dated 26th Sawan 1996.
[56] ?In clause (i) word "gross" omitted and
words in brackets added vide Act VI of 1996 published in the Government Gazette
dated 26th Sawan 1996.
[57] ?In clause (i) word "gross" omitted
and words in brackets added vide Act VI of 1996 published in the Government
Gazette dated 26th Sawan 1996.
[58] Section
80 omitted vide Act VI of 1956 published in the Government Gazette dated 26th
Sawan 1996
[59] Section
81 substituted vide Act VI of 1996 publisded in the Government Gazette dated
26th Sawan 1996.
[60] Section
82 paragraph within brackets substituted and in third paragraph word
"subsequent" substituted for "second" vide Act VI of 1996
published in the Government Gazette dated 16th Sawan 1996.
[61] Words in brackets substituted for
"has become payable" vide Act VI of 1996.
[62] Words in brackets substituted for
words "if then in his possession or power" vide Act VI of 1996,
published in the Government Gazette, dated 26th Sawan 1996.
[63] Words in brackets inserted vide Act
VI of 1996.
[64] ?Words in brackets added vide Act VI of 1996.
[65] Words in brackets inserted vide Act
VI of 1996 published in the Government Gazette dated 26th 1996.
[66] Words in brackets substituted for the
words "as the case may be" vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[67] Words in brackets added vide Act VI
of 1996 published in the Government Gazette dated 26th Sawan 1996.
[68] Section
91 substituted ibid.
[69] Sections
92, 93 and 94 inserted and section 95 substituted vide Act VI of 1996.
[70] See
footnote under section 92.
[71] See
footnote under section 92.
[72] See
footnote under section 92.
[73] In
section 98 words in brackets substituted for the words "a mortgage not
being a simple mortgage, a mortgage by conditional sale, an usufructuary
mortgage or a combination of the first and third or the second and third of
such forms" vide Act VI of 1996 published in the Government Gazette dated
26th Sawan 1996.
[74] In
section 100 words in Ist brackets substituted for the words "as to a
mortgagor shall, so far as may be, apply to the owner of such property, and the
provisions of section 81 and 82 shall, so far as may, apply to the persons
having such charge".
[75] Words in
2nd brackets added vide Act VI of 1996.
[76] Section
101 substituted tide Act VI of 1996.
[77] ?In section 102 words in Ist brackets
substituted for the words "when the person or agent on whom such notice
should be served cannot be found in the said district or it unknown".
[78] Words in 2nd brackets added as
proviso;
[79] ?Words in 3rd brackets substituted for the
words "where the person or agent to whom such tender should be made cannot
be found within the said district, or is unknown".
[80] Words in 4th brackets substituted for
the words "in such court as last aforesaid" vide Act VI of 1996
published in the Government Gazette dated 26th Sawan 1996.
[81] In
section 103 words "on or by" inserted vide Act VI of 1996 published
in the Government Gazette dated 29th Sawan 1996.
[82] In
section 106 words in brackets substituted for the words "tendered or
delivered either personally to the party who is intended to be bound by
it" vide Act VI of 1996 published in the Government Gazette dated 26th
Sawan 1996.
[83] In
section 107 Government" substituted "for His Highness" vide Act
VI of 1996.
[84] Words inserted vide Act VI of 1996.
[85] Words substituted for the words
"daring the continuance of the lease" vide Act VI of 1996 published
in the Government Gazette dated 26th Sawan 1996.
[86] In clause (o) words in brackets
inserted vide Act VI of 1996 published in the Government Gazette dated 26th
Sawan 1996.
[87] Words "or the lease shall become
void" omitted;
[88] Words inserted;
[89] ?Words substituted for the words "either
case";
[90] ?Words substituted for the words "does
some act showing"; vide Act VI of 1996 published in the Government Gazette
dated 26th Sawan, 1996.
[91] Section
114-A added vide Act VI of 1996 published in Government Gazette dated 26th
Sawan 1996.
[92] In
section 117 "Government" substituted for "His Highness"
vide Act-VI of 1996 published in the Government Gazette dated 26th Sawan 1996.
[93] Section
119 substituted vide Act VI at 1996.
[94] In
section 128 words in bracket Inserted vide Act VI of 1996 published in the
Government Gazette dated 26th Sawan 1996.
[95] Section
130 words in brackets inserted vide Act VI of 1996 published in the Government
Gazette dated 26th Sawan, 1996.
[96] Words in
brackets in section 138 substituted by Notification No. 2-L/83 published in the
Government Gazette dated 5th Jeth 1983 (Est) These amendments were to take
effect from 20th Assuj, 1982 (5th October 1925).
[97] Words in
brackets in section 138 substituted by Notification No. 2-L/83 published in the
Government Gazette dated 5th Jeth 1983 (Est) These amendments were to take
effect from 20th Assuj, 1982 (5th October 1925).
[98]
2. Omitted by Jammu And Kashmir Reorganisation Act,
2019, w.e.f. 31.10.2019 the previous text was:-
"(1) Nothing in this
Act shall affect a Regulation, Hidayat, Resolution, Allan, Rule or valid custom
now in force restricting and regulating transfers of immovable property in any
part of the Jammu and Kashmir State of any right therein, or confer any right,
or rights of transfer expressly taken away or restricted by any such enactment.
(2) In particular and
without prejudice to the generality of the provisions of sub-section (1) the
restrictions and rules contained in the following shall be observed:--
(i) No. 104 of 1893.
(ii) State Council
Resolution No. 17 of 22nd June 1895.
(iii) State Council Resolution
No. 9 of 12th October 1895.
(iv) State Council
Resolution No. 52 of 19th October 1897.
(v) Ailan No. 18 of 3rd Poh
1964;
(vi) Hidayat under section
73 regarding alienation sanctioned by His Highness and conveyed under Chief
Minister's letter No. 2301, of 21st July 1916.
(vii) Hidayat No. 185/298
of 24th Magh 1973;
(viii) State Council
Resolution No. 37 of 24th August 1896;
(ix) Ailan No. 9 of 13th
Assuj 1963;
(x) Ailan No. 4 of 18th
Baisakh 1975;
(xi) State Council
Resolution No. 2 of 29th October 1903;
(xii) State Council
Resolution No. 18 of 21st August 1905;
(xiii) State Council
Resolution No. 48 of 30th December 1898;
(xiv) Chief Minister's
letter No. 9470 of nth November 1909 about transfers of land in Mirpur.
(xv) Chief Minister's
letter No. 280 of 26th April 1915, about transfers of agricultural lands in the
Tehsils of Mirpur, Bhimber, and Sri Ranbirsinghpura in the Province of Jammu;
(tentative).
(xvi) S. C. R. No. 48 of
27th March 1893.
(xvii) S. C. R. No. 36 of
10th February 1903.
(xviii) Irshad dated 29th
Maghar 1943.
(xix) Irshad dated 23rd
Magh 1962.
(xx) Irshad No. 742/613,
dated 10th Phagan 1958.
(xxi) Irshad No. 270, dated
17th Chet 1947.
(xxii) Irshad No. 258/278,
dated 22nd Maghar 1957.
(xxiii) Irshad dated 15th
Baisakh 1966.
(xxiv) Irshad of 27th Poh
1951.
(xxv) Irshad No. 13 of 18th
Chet 1949.
(xxvi) S. C. R. No. 50
dated 7th September 1900.
(xxvii) Irshad No. 151/258,
dated 27th Sawan 1972.
(xxviii) Irshad No.
700/2076, dated 4th Phagan 1974.
(xxix) Irshad No. 254/23
dated 24th Sawan 1973.
(xxx) Irshad of 19th
Baisakh 1966.
(xxxi) Hidayat (Settlement
Department of 1966).
(xxxii) Irshad of 2nd
Bhadon 1970.
(xxxiii) Irshad of 30th
Jeth 1968.
(xxxiv) Ailan No. 11 of
24th August 1896.
[Nothing in any of the following
provisions of this Act, namely:--sections 3, 4, 9, 10, 15, 18, 19, 27, 30,
clause (c) of section 31, sections 32, 33, 35, 46, 52, 55, 57, 58, 59, 61 and
62 shall be deemed in any way to affect.
(a) the terms or incidents
of any transfer of property made or affected before the date of enforcement of
the Transfer of Property Amendment Act 1996;
(b) the validity,
invalidity, effect or consequences of anything already done or suffered before
the aforesaid date;
(c) any right, title
obligation or liability already acquired, accrued or incurred before such date,
or
(d) any remedy or
proceeding in respect of such right, title obligation or liability; and nothing
in any other provision of this Act shall render invalid or in any way affect
anytime already done before such date as aforesaid in any proceeding pending in
a Court, on that date; and any such remedy and any proceeding as is herein
referred to may be enforced, instituted or continued, as the case may, as if
this Act had not been passed.]"
[99]
Omitted by
Jammu And Kashmir Reorganisation Act, 2019, w.e.f. 31.10.2019 the
previous text was:-
Nothing contained in Irshad
dated 29th Maghar, 1943 or any law rule, order, notification, regulation,
hidayat, ailan, circular, robkar, yadasht, irshad, State Council resolution or
any other instrument having the force of law prohibiting or restricting the
transfer of immovable property in favour of a person who is not a permanent
resident of the State shall apply to-
[(a) a mortgage of
immovable property other than land as defined in the Jammu and Kashmir
Alienation of Land Act, Samvat 1995, in favour of-
(i) the Life Insurance
Corporation of India established under the Life Insurance Corporation Act, 1956
(31 of 1956) and having an office for transacting the business in the State ;
or
(ii) the Industrial Finance
Corporation of India established under the Industrial Finance Corporation Act,
1948 ; or
(iii) the Jammu and Kashmir
State Financial Corporation established under the State Financial Corporation
Act, 1951 ; or
(iv) the Jammu and Kashmir
Bank Ltd. or the Industrial Development Bank of India or a Bank for the time
being included in the Second Schedule to the Reserve Bank of India Act, 1934
and having an office for transacting the business of banking in the State ; or
(v) the Industrial Credit
and Investment Corporation of India ; or
(vi) the Housing and Urban
Development Corporation Ltd., New Delhi ; or
(vii) The Unit Trust of
India :
[(viii) The Jammu and
Kashmir Housing Board constituted under the Jammu and Kashmir Housing Board
Act, 1976 :
Provided that in any suit
based on such mortgage the mortgaged property shall be sold only to a permanent
resident of the State] or
[(ix) the Jammu and Kashmir
Development Finance Corporation Limited]
(aa) a simple mortgage of
land in favour of-
(i) the Jammu and Kashmir
Bank Ltd. or the Industrial Development Bank of India or a Bank for the time
being included in the Second Schedule to the Reserve Bank of India Act, 1934
and having an office for transacting the business of banking in the State ; or
(ii) the Jammu and Kashmir
State Financial Corporation established under the State Financial Corporation
Act, 1951 ; or
(iii) the Life Insurance
Corporation of India established under the Life Insurance Corporation Act, 1956
; or
(iv) the Industrial Finance
Corporation of India established under the Industrial Finance Corporation Act,
1948 ; or
(v) the Industrial credit
the Investment Corporation of India ; or
(vi) the Housing and Urban
Development Corporation Ltd., New Delhi ; or
(vii) the Unit Trust of
India ; or]
[(viii) the Jammu and
Kashmir Housing Board constituted under the Jammu and Kashmir Housing Board
Act,1976 ;]
[(ix) The Housing
Development Finance Corporation Limited [x x x]; or
[(x) The Jammu and Kashmir
Scheduled Castes and other Backward Classes Development Corporation Limited
registered under the Companies Act, 1956]
[(xi) The Jammu and Kashmir
Police Housing Corporation Limited, Jammu/Srinagar ; or
[(xii) The Jammu and
Kashmir Development Finance Corporation Limited :
Provided that in any suit
based on such mortgage the mortgaged land shall be sold only to a permanent
resident of the State, who is a member of an agricultural class for purposes of
the Jammu and Kashmir Alienation of Land Act, Svt. 1995]] ;
(b) a transfer of immovable
property situate and Katra and the village contiguous to it in favour of the
VishwayatanYogashram, a Society registered under the Societies Registration
Act, 1860 (Central Act No. 21 of 1860) effected in furtherance of the declared
purpose of the Society.]
[(c) A transfer of
immovable property in favour of Sher-i-Kashmir National Medical Institute
Trust, Srinagar.]
[(d) a transfer of
immovable property situate in District Udhampur acquired or requisitioned on
behalf and at the expense of the Union, in favour of National Hydroelectric
Power Corporation Limited for construction, commissioning, running and
maintenance of the Salal Hydroelectric Project.]
[(e) a transfer of
immovable property by the Government in favour of-
(i) the Jammu and Kashmir
Tourism Development Corporation Ltd. ;
(ii) the Jammu and Kashmir
Industries Ltd. ;
(iii) the Jammu and Kashmir
Minerals Ltd. ;
(iv) the Jammu and Kashmir
State Industrial Development Corporation Ltd. ;
(v) the Jammu and Kashmir
Handicrafts (State and Export) Corporation Ltd. ;
(vi) the Jammu and Kashmir
Road Transport Corporation Ltd. ;
(vii) the Jammu and Kashmir
Agro Industries Corporation Ltd. ;
(viii)the Jammu and Kashmir
Projects Construction Corporation Ltd. ; or]
[(ix) the Jammu and Kashmir
Bank Ltd. ;]
[(x) the Jammu and Kashmir
Energy Development Agency]
[(f) a simple mortgage of
immovable property in favour of-
(i) Hindustan Machine
Tools, Watch Factory, Zainakot, Srinagar ;
(ii) Orient Insurance
Company Limited, having an office for transacting the business in the State ;
(iii) New India Assurance
Company Limited having an office for transacting the business in the State ;
(iv) National Insurance
Company Limited having an office for transacting the business in the State ;
(v) United India Insurance
Company Limited having an office for transacting the business in the State ; or
(vi) Indian Telephone
Industries Limited, Hyderopora, Srinagar, by their employees respectively, who
are permanent residents of the State, for obtaining loan for construction or
purchase of residential accommodation in the State :
Provided that in any suit
based on such mortgage, the mortgaged property shall be sold only to a
permanent resident of the State]
[(g) a transfer of
immovable property in favour of-
(i) Sher-i-Kashmir
University of Agricultural Sciences and Technology, established and
incorporated under the Sher-i-Kashmir University of Agricultural Science and
Technology Act, 1982, in furtherance of the objects of the University ;
(ii) Jammu and Kashmir
Small Scale Industries Development Corporation Limited and Jammu and Kashmir
State Industrial Development Corporation (State owned Corporations) for
industrial development in the State.]
[(iii) the Jammu and
Kashmir State Cable Car Corporation ;
[(iv) the Jammu and Kashmir
Bank Limited ;
[(v) the Jammu and Kashmir
State Power Development Corporation Limited]
[(vi) the Jammu and Kashmir
Energy Development Agency]
[(h) A simple mortgage of
immovable property executed or created in favour of a public financial
institution, as specified in section 4-A of the Companies Act, 1956, a
scheduled bank for the time being included in the Second Schedule to the
Reserve Bank of India Act, 1934 and the Trustees for the holders of debentures
to secure the loans, guarantees, issue of debentures or other form of financial
assistance provided for developmental projects in the State of Jammu and
Kashmir like Baghliar Project of Jammu and Kashmir State Power Development
Corporation Limited :
Provided that in any suit
based on such mortgage the mortgaged property shall be sold or transferred only
to [is permanent resident of the State or any financial institution or
corporation managed and owned by the Government of India]].
[(i) a lease of immovable
property in favour of-
(i) Shri Mata Vaishno Devi
University established under the Jammu and Kashmir Shri Mata Vaishno Devi
University Act, 1999 ; and
(ii) Baba Ghulam Shah
Badshah University established under the Jammu and Kashmir Baba Ghulam Shah
Badshah University Act, 2002, for fulfilment of the objectives of the
University]
[(j) a lease of immovable
property in favour of the Jammu and Kashmir Chenab Valley Power Projects
(Private) Limited for construction, commissioning, maintenance and running of
three Hydro Electric Projects, viz. Pakaldul, Kiru and Kawar :
Provided that the maximum
period of lease shall not exceed f4o years]
[(k) a lease of immoveable
property in favour of the State Branch of the Indian Red Cross Society, a
society registered under the Societies Registration Act, 1860 (Central Act No.
31 of 1860) for construction of its office required for fulfilment of
objectives of the said society.]"