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 incase a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain even 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 & 27.
29. Fulfillment of condition subsequent.-An ulterior disposition of the kind contemplated by the last preceding section cannot take effect unless the condition is strictly fulfilled.
Illustration.- A transfers Rs.500 to B. to be paid to him on his attaining his majority or marrying, with a proviso that if B dies a minor or marriages without C’s consent the said Rs.500 shall go to D,B marries when only 17 years of age without C’s consent. The transfer to D takes effect.
30. Prior disposition not affected by invalidity of ulterior disposition.-If the ulterior disposition is not valid the prior disposition is not affected by it.
Illustration.- A transfer a farm to B for her life and if she does not desert her husband, to C.B is entitled to the fans during her life as if no condition had been inserted.
31. Condition that transfer shall cease to have effect in case specified uncertain even 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.
Illustrations.-(a) A transfers a farm to B, for his life with a proviso that in case B cuts down the wood. He loses his life interest of the farm.
(b) A transfer a farm to B : provided that if B shall not go to England within three years after the date of transfer his interest in the farm shall cease B does not go to England within the term prescribed. His interest in the farm Ceases.
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.
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.
34. Transfer conditional on performance of act, time being specified.-Where an act is to tie 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.
35. Election when necessary-(1) 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.
Illustration.-(1) The farm of Sultanpur is the property of C and worth Rs.800. A by an a instrument of gift professes to transfer it to B. giving by the same instrument Rs.1,000 to C.C elects to retain the farm. He forfeits the gift to Rs.1,000.
In the same case, A dies before the election. His representative must, out of the Rs.1,000 pay Rs.800 to B.
(2) 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.
(3) A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.
(4) 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 transfer professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claims the property, the must relinquish the particular benefit but he is not bound to relinquish any other benefit conferred upon him by the same transaction.
(5) Acceptance of the benefit by the person on whim it is conferred constitute 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 inquiry into the circumstances.
(6) Such knowledge of 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.
(7) Such knowledge of 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.
Illustration.-A transfers to B an estate to which c is entitled, as part of the same transaction gives C a coal mine, C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
(8) If he does not, within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of the 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.
36. Apportionment of periodical payments on determination of interest of person entitled.- In the absence of a contract or local usage to the contrary, all rents, annunities, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payment, be deemed, as between the transferor and the transferee to accrue due from day to day, and to be apportionable accordingly, but to be payable the days appointed for the payment thereof.
37. Appointment 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 elating 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 perforated for the benefit of such one of the several owners as they shall jointly designate for the purpose.
Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it is manner provided by this section, unless and until he has had reasonable notice of the severance.
Nothing in third section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.
Illustration.-(a) A sells to B. C and D a house situate in a village and leased to E at an annual rent of Rs.30 and delivery of one fate sheep, B having provided half of the purchase money, and C and D one quarter each. E, having notice of this, must pay Rs.15 to B.Rs.7.50 to C and Rs.7.50 to D, and must deliver the sheep according to the joint direction of B,C and D.
(b) In the same case each house in the village being bound to provide ten
day’s labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A,B,C, and D severally require E to perform the ten days, work due on account of the house of each. E is not bound to do more than ten day’s work in all, according to such directions as B.C and D may join in giving.
(A) TRANSFER OF IMMOVABLE PROPERTY
38. Transfer by person authorized only under circumstances to transfer - Where any person, authorized 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 tile transfer on the other part, be deemed to have existed, if the transferee, after using reasonable cause to ascertain the existence of such circumstances, has acted in good faith.
Illustration.-A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is in sufficient for her maintenance, agrees for purposes neither religious nor chargable, to sell a field, part of such property to B. B satisfies himself by reasonable inquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and, acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.
39. Transfer where third person is entitled to maintenance.- Where a third person has a right to receive maintenance, or a provision for advancement of marriage, from the profits of immovable property, and such property is, transferred, the right maybe enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, not against such property in his hands.
40. Burden of Obligation of imposing restriction on use of 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 thereof, a right to restrain the enjoyment in a particular manner of the latter property, or
Of obligation annexed to ownership but not amounting to interest or easement.- Where a third person entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovably property, but not amounting to an interest therein or easement thereof, 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, not against such property in his hands.
Illustration.- A contracts to sell Sultanpur to B. While the contract is still in force
He sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.
41. Transfer by ostensible owner.-Where, with the consent, express or implies, of the person 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 authorized 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.
42. Transfer by person having authority to revoke former transfer.-Where a person transfers any a 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.
Illustration- A lets a house to B. and reserves power to make the lease if, in the opinion of a specified surveyor, B should make a sue of it detrimental to its value. Afterwards A, thinking that such has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.
43. Transfers by unauthorized person who subsequently acquires interest in property transferred.- Where a person fraudulently 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 anytime 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.
Illustration.- A, a Hindu who has separate from his father B. sells to C three fields, X,Y and Z representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.
44. Transfer by one co-owner.- Where one or 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 of interest, and so far as I 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 of 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.
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 maybe, with the interest 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 interest in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to interest in the fund to which they were respectively entitled, or as to the shares which hey respectively advanced, such, person shall be presumed to be equally interested in the property.
46. Transfer for consideration by persons having distinct interest.- Where immovable property is transferred for consideration by persons having distinct interests therein, the transferors, are, 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 interest.
Illustration.-(a) A, owning a moiety and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza Lalpura. There being no agreement to the contrary. A is entitled to an eighth share in Lalpura and B and C each a sixteenth share in that mauza.
(b) A, being entitled to a life interest in mauza A trauli and B and C to the reversion sell the mauza for 1000.A’s life-interest is ascertained to be worth Rs.600,the reversionRs.400.A is entitled to receive Rs.600 out of the purchase money, B and C to receive Rs.400.
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, a 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.
Illustration.-A,the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer, one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.
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 at 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.
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 thereof as maybe necessary to be applied in re-instating the property.
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.
Illustration.-A lets a field to B at a rent of Rs. 50 and then transfers the field to C.C, having no notice of transfer, in good faith pays the rent to A.B is not chargeable with the rent so paid.
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 marked 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 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.
52. Transfer of property pending suit relating thereto.-During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond the limits of the Central Government, 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 to 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 maybe made therein, except under the authority of the Court and no 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.
53. Fraudulent transfer-(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 creditors 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 so 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.
53-A. Part performance.- Where any person contracts to transfer for consideration of any immovable property by writing signed by him or on his behalf from which the terms necessary constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract; and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, through required to be registered has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof.
OF
SALES OF IMMOVABLE PROPERTY.
54. “Sale” defined.-“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.-Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer maybe made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer ,or such person as he directs, in possession of the property.
Contract for sale..-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on, such property.
55. Rights and liabilities of buyer and seller.- In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights ,mentioned in the rules next following, or such of them as are applicable to the property sold :
(1) The seller is bound-
(a) to disclose to the buyer and material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware and which the buyer could not with ordinary care, discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect 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 property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
(2) The seller shall be deemed to contract with buyer that the interest which 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 incumbered or whereby he is hindered from transferring it.
(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 too 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 maybe, shall keep the said documents safe, uncancelled and undefacted, unless prevented from so doing by fire or other inevitable accident.
(4) the seller is entitled-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchaser-money, to a charge, upon the property in the hands of buyer, and transferee Without consideration or any transferee with notice of the non-payment, for the amount of purchase-money, or any part thereof remaining unpaid and for interest of such amount or part from the date of 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 are, and which materially-increase the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money, the amount of any encumbrances on the property existing at the date of sale, and shall pay the amount so retained to the person entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold and the interest thereon afterwards accruing due.
(6) The buyer is entitled-
(a) where the ownership of the property has passed to him to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery also for the earnest(if any) and for the costs(if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section paragraph clause(a), and Paragraph (5) clause(a) is fraudulent.
56. Marshalling by subsequent purchaser - If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgaged debt satisfied out of the property or properties and 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 fore consideration acquired an interest in any of the properties.
57. Provision by court for incumbrances and sale freed therefrom.-(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 Central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and
(2) in any other case of a capital sum charged on the property-of the amount sufficient to meet the 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 it, 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) a High Court in the exercise of the ordinary or extraordinary original civil jurisdiction,(2) the Court of a District judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court, which the State Government may, form time to time by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.
OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES
58. (a)“Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money’ and “mortgage-deed” defined.- 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(if any) by which the transfer is effected is called a mortgage deed.
(b) Simple mortgage - Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional sale - Where the mortgagor ostensibly sells the mortgaged property-
On condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or
On condition that on such payment being made the sale shall become void, or
On condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
(d) Usufructuary mortgage - Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu to interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee an usufructuary mortgagee.
(e) English mortgage -Where the mortgagor binds himself to re-pay the mortgage-money on a certain date and transfer the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
(f) Mortgage by deposit of title-deeds -Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may be notification in the official Gazette specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage or deposit of title-deeds.
(g) Anomalous mortgage.- A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title deeds within the meaning of this section is called an anomalous mortgage.