Deposit in court.
83. Power to deposit in Court money due on mortgage.-At any time after the principal money 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.
84. Cessation of interest.-Where the mortgagor or such other person as aforesaid has tendered or deposited in Court under 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that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.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-demortgagee 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, and such notice has not been given before the making of the tender or deposit, as the case may be,
85. Parties to suits for foreclosure, sale and redemption.-Repealed by the Code of Civil Procedure,1908’(Act V of 1908),Section156 and Schedule V.
86 to 90.- Repealed by the Code of Civil Procedure,1908( Act V of 1908),’Section156 and Schedule V.
91. Persons who may sue for redemption.-Besides the mortgagor, any of the following persons may redeem, or institute a suit 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;
(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.
92. Subrogation.-Any of the person 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 of sale of such property, the same right as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by the section is called the right of subrogation and a person requiring the same is said to be subrogated to the right 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 mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person 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.
93. Prohibition of tacking.-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 mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.
94. Rights of mesne mortgagee.-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.
95. Right of redeeming co-mortgagor to expenses.-Where one of several mortgagors redeems 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. Mortgage by deposit of title-deeds.-The provisions here-in before contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.
97. Repealed by Code of Civil Procedure,1908(Act 5 of 1908),Section 156 and Sch.V.
98. Rights and liabilities of parties in anomalous mortgages.-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.
ATTACHMENT OF
MORTGAGED PROPERTY.
99. Attachment of mortgaged Property:- Repealed by the Code of Civil Procedure,1908,( Act 5 of 1908),section 156 and Sch. V.
100. Charges.-There 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 here in before contained 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, and, save as otherwise expressly provided by any law for the time being in force, no charge 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.
101. No merger incase of subsequent encumbrance.-Any mortgagee of, or person having a charge upon immovable property, or any transferee from 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.
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.
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 :
Provided that, in the case of notice required by Section 83,in the case of a deposit, the application shall be made to the Court in which the deposit has been made.
Where no person or agent to whom such tender should be made can be found or in known to the person desiring to make the tender, the latter person may deposit 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.
103. Notice, etc., to or by person incompetent to contract.-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 maybe served on or by, or tender or deposit made,. Accepted or taken, by the legal curator or the property of such person; but where there is no such curator, and it is + 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 as litemfor the purpose 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 in the First Schedule to the Code of Civil Procedure,1908(Act 5 of 1908) shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder.
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.
OF LEACES OF IMMOVABLE PROPERTY.
105. Lease Defined.-A lease of immovable property is a transfer of 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, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
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 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; a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day’s notice expiring with the end of a month of tenancy.
Every
notice under this section must be in writing, signed by or on behalf of the
person giving it, and weather be sent by post to the part 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.
107, Lease how made.-A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, 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.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than lease from year to year, or for any term exceeding one year, or reserving yearly rent, or any class of such leases; maybe made by unregistered instrument or by oral agreement without delivery of possession.
108. Rights and liabilities of lessor and lessee.-In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively possess the rights and are subject to the liabilities mentioned in a rules next following, or such or 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 contract 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 times 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 allusion for the time being in force) shall be deemed to the comprised in the lease;
(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property by wholly destroyed or rendered substantially and permanently unfit for 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 lease, 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 which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;
(h) the lessee may, even after the determination of the lease, remove, at anytime whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth :provided he leave 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 transfer of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;
nothing in this clause shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;
(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 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 time 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 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) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lassor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;
(o) the lessee may use the property and its products, if any, as a person of ordinary prudence would use them if they were his own, but he must not use, or permit another to use, the .property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines ,or quarries not open when the lease was granted or commit an by 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.
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 transfer 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 believable 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.
110. Exclusion of day on which term commences.-Where the term 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.
Duration of lease for a year.-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.
Option to determine lease. - 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.
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 interest 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**; or(2) incase the lessee renounces his character as such by setting up a title in a third person or by claming title in himself; or (3) the lessee is adjudicated an involvement and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transfer given 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.
A lessee accepts from his lease of the property-leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.
112. Waiver of forfeiture.-A forfeiture under Section 111,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 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.
113. Waiver of notice to quit.-A notice given under Section 111,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.
Illustrations.-(a) A, the lessor, given B. The lessee a notice to quit the property-leased. The notice expired. B tenders, and A accepts rents which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, he lessor, given B. the lessee, notice to quit the property-leased. The notice expires, and B remains in possession. A given to B. as lessee, a second notice to quit. The first notice is waived.
114. Relief against forfeiture for non-payment of rent.-Where a lease of immovable property has been determined by forfeiture for nonpayment 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 arrears together with interest thereon and his full costs of the suit, or given 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.
114-A. Relief against forfeiture in certain other cases.-Where a lease of immovable property has been 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 parties 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 possession, or disposing of the property leased, or to an express condition relating to forfeiture in cases of non-payment of rent.
115. Effect of surrender and forfeiture on under-leases.-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 same9excwept as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining anew lease, the rent payable by, and the contracts binding on the under-lease 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.
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.
Illustrations.-(a) A lets a house to B for five years, B under lets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C’s lease the renewed from month to month.
(B) A lets a farm to B for the life of C, A dies, but C continues in possession with A’s assent. B’s lease is renewed from year to year.
117. Exemption of leases for agricultural purposes.-None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the ‘State Government *** may, by notification published in the Official 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.
OF EXCHANGES.
118, “Exchange” defined - When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “Exchange”.
A transfer of property is completion of an exchange can be made only in manner provided for the transfer of such property by sale.
119. Right of party deprived of thing received in exchange.-If any party to a 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 of 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.
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 seller 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.
121. Exchange of money.-On an exchange of money each party thereby warrants the genuineness of the money given by him.
OF GIFTS.
122. “Gift” defined.-“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
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 any attested by at least two witnesses.
124. Gift of existing and future property.-A gift comprising both existing and future property is void as to the latter.
125. Gift to several 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.
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 maybe.
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.
Illustrations.-(a)A gives a field to B, reserving to himself with B’s assent, the right to take back the field in case C and his descrndants. die before A.B dies without descendants-in A’s life time. A may take back the field.
(b) A gives a lakh of rupees to B. reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90,000 but is void as to Rs. 10,000 which continue to belong to A.
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.
Onerous gift to disqualified person.-A donee not competent to contract and accepting property burdened by any obligation is no it 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 by
Illustrations.-(a) A has shares in X, a prosperous joint-stock company, and also share in Y. a joint stock Company in difficulties, Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock Companies. B refuses to accept the shares in Y. He cannot take the shares in X.
(b) A, having a lease for a term of years of a house at rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money B refuses to accept the lease. He does not, by his refusal forfeit the money.
128. Universal donee.-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.
129. Saving of donations mortis cause and Mohammadan Law-Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law.
130. Transfer of actionable claims.-(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 authorized agent,*** shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether such notice of the transfer as is hereinafter provided by 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 we 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 a marine or fire policy of insurance or affects the provisions of Section 38 of the insurance Act, 1938.
Illustrations.-(I) A owes money to B. who transfers the debt to C. B. then demands the debt from A, who, not having received notice of the transfer, as prescribed in Section 131 pays B. The payment is valid, and C cannot sue A for the debt.
(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of Section 130 and to the provisions of Section 132.
130-A. Transfer of policy of marine insurance.-This section was inserted by the transfer of Property(Amendment) Act, VI of 1944. It has been repealed by Section 92 of the Marine Insurance Act, XI of 1963 and not re-enacted as Section 52(1) & (3) of that Act.
131. Notice to be in writing signed.-Every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorized in this behalf, or, in case the transferor refuses to sign, by the transfer of his agent, and shall state the name and address of the transferee.
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.
Illustrations.-(I) A transfers to C a debt due to him by B,A being then indebted to B,C sues B for the debt due by B to A. In such suit it is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.
(ii) A executed a bond in favour of B under circumstances entitling the former to having it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.
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.
134. Mortgaged debt.-Where a debt is transferred for the purpose of securing an existing or future debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery, secondly, in or towards 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.
135. Assignment of rights under policy of insurance against fire.-Every assignee, by endorsement or other writing, 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.
135-A. Assignment of rights under Policy of marine insurance. Section 135-A was inserted by the Transfer of Property(Amendment) Act, VI of 1944.It has been repealed by Section 92 of the Marine Insurance Act, XI of 1963,and now reenacted in Sections 52(2),79 and 91 of that Act.
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 dealt with by him as aforesaid.
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, bylaw 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 good, and any other document used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.