Provisions relating to sale; Mortgage, Charge, Lease, Gift and actionable claim

Transfer of Property Act, 1882, contains detailed provisions regarding different modes of transferring property, including sale, mortgage, charge, lease, gift, and actionable claims. These provisions lay down the framework for the conditions, rights, and obligations associated with each mode of transfer.

Sale (Section 54)

Sale of immovable property is the transfer of ownership for a price paid or promised or part-paid and part-promised. Key points are:

  • Mode of Transfer:

For tangible immovable property of value less than one hundred rupees, transfer can be made either by a registered instrument or by delivery of the property. For property of value one hundred rupees and upwards, or for any reversion or other intangible thing, a registered instrument is necessary.

  • Rights and Liabilities of Buyer and Seller:

The seller is bound to disclose material defects, produce documents, answer questions, and take care of the property until delivery. The buyer is entitled to the benefit of any improvement or increase in value and is liable to bear any loss.

Mortgage (Sections 58104)

Mortgage is the transfer of an interest in specific immovable property for securing payment of a loan. Key types are:

  • Simple Mortgage:

The mortgagor personally binds himself to pay the mortgage money and agrees that, in the event of failure, the mortgagee has the right to cause the mortgaged property to be sold.

  • Mortgage by Conditional Sale:

Mortgagor ostensibly sells the mortgaged property on condition that on default of payment, the sale becomes absolute, or on payment being made, the sale becomes void.

  • Usufructuary Mortgage:

Mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, who is entitled to retain possession until payment.

  • English Mortgage:

Mortgagor binds himself to repay the mortgage money on a certain date, with the mortgaged property transferred absolutely to the mortgagee, but subject to a proviso that the mortgagee will retransfer it upon payment.

  • Mortgage by Deposit of Title-Deeds:

This occurs in some cities where the mortgagor delivers the documents of title to the mortgagee with intent to create a security thereon.

  • Anomalous Mortgage:

A mortgage that does not fit into any of the categories mentioned above.

Charge (Section 100)

Charge is not defined in the Act but generally refers to the security for the payment of money, created either by the act of parties or by operation of law, over specific property. Unlike a mortgage, it does not involve the transfer of interest but creates a right to payment out of a specified property.

Lease (Sections 105-117)

Lease of immovable property is a transfer of a right to enjoy such property for a certain time or in perpetuity in consideration of a price paid or promised. Key aspects include:

  • Rights and Obligations:

The lessor is bound to disclose defects, the lessee is bound to pay rent, and both have various other rights and obligations concerning the property’s use, maintenance, and return.

Gift (Sections 122-129)

Gift is the transfer of certain existing movable or immovable property, made voluntarily and without consideration, from one person to another. The transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.

Actionable Claim (Section 130)

An actionable claim is a claim to any debt (excluding debt secured by mortgage of immovable property or hypothecation or pledge of movable property) or any beneficial interest in movable property not in possession. The transfer of an actionable claim must be effected in writing signed by the transferor or his duly authorized agent.

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