Category: Transfer of Property

TRANSFER BY OSTENSIBLE OWNER UNDER TRANSFER OF PROPERTY ACT
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INTRODUCTION A transfer is an act of transferring something from one person to another. Any physical or virtual entity possessed by a person or group of people is considered property. A property asset can be transferred from one person to another through transferring rights, interests, ownership, or possession. Either or all of the ingredients can be satisfied. It can happen in two ways: by the parties’ acts and by law. Section 5 of the Transfer of Property Act of 1882 defines the term “transfer of property.” It describes an activity in which a live person transfers property to one or so more people, or to himself or to one or so more living people, in the present or future. A living person is defined as a corporation, an association, or a group of individuals, whether or not they are incorporated. Some important concepts in this act are as follows: Immovable property involves land, benefits resulting from the land, and goods linked to the land, according to the General Clauses Act of 1897. Immovable property can be defined as including all property that is not standing wood, growing crops, or grass in the context of property transfer. Mortgage debt was omitted from actionable claims following the amendment of 1900. Wallis C.J. held in Peruma animal vs. Peruma Naicker that mortgage debts might be transferred as actionable claims before 1900, but that they were excluded from the actionable claims because the legislature meant that the mortgage debt is transferred in the mortgagee’s interest through an instrument that is registered. Instrument: The instrument is defined as a non-testamentary instrument according to the 1882 Transfer of Property Act. It serves as proof of a property transfer between living parties. An instrument is a formal legal document, according to the legal terminology. Attested: A formal document signed by someone acting as a witness is referred to as attested. The executors are the persons who are in charge of transferring the property. In 1926, the amendment legislation was passed, stating that two or more witnesses must sign the document in the presence of the executant, not necessarily at the same time, and they must not be parties to the transfer. Registered: According to the 1882 Transfer of Property Act, “registered” refers to any property that is registered in a jurisdiction where the Act is in effect. Various registration procedures must be followed.a. The property’s description should be stated.b. Avoid being a victim of fraud.c. A competent person should present the deeds.d. The property must be listed in the very jurisdiction as the registered office. Actionable claims: A claim to any debt, except a debt acquired by a mortgage of immovable property or pledge o or hypothecation of movable property, or to any equitable interests in movables, not in the claimant’s possession, either actual or constructive possession, which the civil courts recognize as providing grounds for relief, whether such debt or advantageous interest is existent, accusing, or conditional. Notice: The term “notice” refers to being aware of a fact. The individual is well-versed in a variety of scenarios. The Transfer of Property Act of 1882 settled 2 kinds of notices. Other important concepts are actual or implied notice means the one who is aware of a specific truth and constructive notice means that reality is discovered as a result of circumstances. Transfer of property must be done by a competent person: For a legitimate transfer, the person transferring the property must be of sound mind, not intoxicated, a major, or not a person prohibited by law from entering into a contract of transfer of property with another person. The transfer must be made in the following format: Property transfers do not have to be in writing, but if there is a specific property to transfer, it should be in writing:a) Over a hundred rupees was spent on the sale of the transportable property.b) The sale of intangibles must be done in writing.c) All mortgages with a value of more than a hundred rupees must be transferred in writing.d) A documented transference of actionable claims is required.e) Immovable property is given as a gift.f) A lease of more than one year on immovable property. OSTENSIBLE OWNER The provision is founded on the idea of proportionality. No one can confer a higher right on a property than what he owns, and alium transferee potest quam ipsa habet and nemo plus juris, which means that no one may transfer a right or title larger than what he owns. The ostensible owner’s transfer emphasizes the notion of holding out. To make use of this section, you must meet specific qualifications, according to the law for its application. They are as follows: The most important need is that the individual transferring the property is the ostensible owner. The property owner’s permission should be given either implicitly or explicitly. The transfer ought to be in exchange for something. The transferee must exercise reasonable caution in determining the transferor’s authority to complete the transaction and whether he acted in good faith. The idea of ostensible owner transfer is founded on the doctrine of estoppel, which states that when a genuine owner of property makes someone appear to be the owner to third parties and they engage on that representation, he cannot retract his representation. This clause and its rules apply only to immovable property but not to movables. However, the ostensible owner is really not the true owner, but he can pretend to be the real owner in such transactions. By the purposeful neglect or acquiescence of the genuine owner of the land, he has obtained that right, rendering him an ostensible owner. A guy who has been away for a number of years has donated his property to a close cousin to utilize for agricultural purposes and whatever else he sees suitable. In this situation, the ostensible owner is a family member, and if he transfers the property to a third party during that time, the true owner cannot claim his propertyRead More

Seth Ganga Dhar v. Shankar Lal & Ors
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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This commentary discusses in brief about the case Seth Ganga Dhar Vs. Shankar Lal and Ors. Petitioner Seth Ganga Dhar Respondent Shankar Lal and Ors. Citation AIR 1958 SC 770, [1959]1SCR509 Civil Appeal No. 150 of 1954 Hon’ble Judges/Coram A.K. Sarkar, J.L. Kapur and N.H. Bhagwati, JJ. Date of Decision 15.04.1958 The term “mortgage” performs a crucial role in identifying the property law. Mortgage describes the transfer of interest conferred in an immovable property for advancing a loan or for a little which would give rise to monetary interest in future. The person who transmits the activity is identified as mortgagor and the individual to whom the interest is transported is known as mortgagee. The extent for which the estate is mortgaged is identified as the principal money or amount. In the Transfer of Property Act,1882, various kinds of mortgages have been well-defined along with affixed circumstances. As quickly as the property is mortgaged, some of the rights of the mortgagor are necessarily reserved. One such vital right is the Right to redemption. Each Time an individual mortgages his property as a protection, he has the right to take it back when he pays back the amount along with interest. The property cannot be kept forever with the mortgagee because it will remove the mortgagor of his right to Redemption. Section 60 talks about the right and describes the things which are to be sent to mortgagor on payment of cash. The mortgagor in any court case cannot be denied of his right. Any such situation that impedes the mortgagor from converting his property back up from the mortgagee is known as “Clog on Redemption”. Such circumstances are deemed as void ab initio. There are some exemptions in which this clog is not unenforceable but, in most of the cases it is. FACTS OF THE CASE This appeal has appeared out of a suit for “the redemption of a mortgage” which is dated August 1, 1899. The mortgage was formed by Purshottamdas who has passed away now and was in favour of Dhanurpmal, a respondent in the said appeal. The mortgage instrument asserted that the land had been usufructuary pledged in lieu of Rs. 6,300 of which Rs. 5,750 were left with the mortgagee to restore a previous mortgage on the similar and a new property with a profitable mortgage refinancing assistance. It also offered that on recovery of the preceding mortgage, the ownership of the shop shall be taken and reserved by the mortgagee, Dhanurpmal, who would fix the rent in accordance with interest on the cash advanced by him and the ownership of the other property enclosed by the previous mortgage, having a share in a Kacheri, would be given over to the mortgagor, Purshottamdas. The mortgagee, Dhanrupmal, suitably redeemed the previous mortgage and, took the possession of the shop while the possession of the Kacheri was transferred to the mortgagor. On April 12, 1939, Dhanurpmal transferred his rights under the mortgage to Motilal who also died later and whose property is now being represented by his sons; they are the respondents in this appeal. The property of Purshottamdas, who is the original mortgagor, is now also represented by his son, the appellant. Requesting a short-term loan without a job or payday monetary advance is the simplest thing to do and so is being eligible for it. There are only two easy limitations on it, such as, that you must have never evaded a prior payday loan and that you must have adequate income. On January 2, 1947, the complainant filed the suit in the Court of the Sub-Judge, Ajmere, alongside the respondents. The suit was challenged by the sons of Motilal, the assignee of the mentioned mortgage, who are the respondents appearing in the case appeal, who shall be henceforth mentioned as the respondents. They stated that the suit was hasty as under the contract of mortgage there was no right of release for eighty-five years after the said date of the mortgage, till August 1, 1984.  The learned Sub-Judge, intending to adhere to a decision of the Judicial Commissioner, Ajmere, to whom he was subservient, held that the requirement delaying redemption for eighty-five years was unenforceable as it amounted to a clog up on the equity of redemption. Therefore, he passed an initial decree for redemption. On filing the appeal, the learned Judicial Commissioner, Ajmere, held, the decision that had been intended to follow was evident. He analysed many cases on the subject matter and came to the assumption that the provision that was in question did not sum up to a “clog on the equity of redemption”. He, thus, permitted the appeal and rejected the appellant’s suit. From this judgment the appeal to this Court begins. The conditions in the mortgage instrument on which the current debate turns were in these terms: “I or my heirs will not be entitled to redeem the property for a period of 85 years. After the expiry of 85 years, we shall redeem it within a period of six months. In case we do not redeem within a period of six months, then after the expiry of the stipulated period, I, my heirs, and legal representatives shall have no claim over the mortgaged property” ISSUES Whether a term period in a mortgage instrument, so far as it precludes the right to redeem from accumulating for a time, a clog on the equity of redemption? JUDGMENT Section 60 of “Transfer of Property Act”, at any given time after the primary money has become due, the mortgagor gets a right on payment or offer of the mortgage money to entail the mortgagee to re convey the mortgage estate to him. The right that is given by this section has been termed as the ‘right to redeem’ and, also, in this section that right can be applied only after the money of mortgage has becomeRead More