« 이전계속 »
specified cases, a power of sale (sec. 69). There are parts of Power of India in which such a power would be abused by Native mort- sale. gagees,
and the Act therefore declares that such powers are valid only, 1. when the mortgage is in the English form and neither party is a Hindú, Muhammadan, or Buddhist ; 2. where the mortgagee is the Secretary of State in Council ; and, 3. where the mortgaged property is situate in the towns of Calcutta, Madras, Bombay, Karáchí, or Rangoon. Where accessions are made to the mort- Accregaged property, or a mortgaged lease is renewed, the mortgagee is also entitled, for the purposes of his security, to such accessions or the new lease. Where, during the continuance of the mortgage, he takes possession, his rights to spend and add the expense to the principal are set forth in sec. 72. Under the same section he has a right to insure where the property is by its nature insurable, and the mortgagor has not insured it. Where the property is sold through failure to pay arrears of revenue or rent, the mortgagee has a charge on the surplus, if any, of the proceeds, for the amount due on his mortgage, unless of course the sale has been occasioned by his own default (sec. 74). The right of subsequent mortgagees to pay off and stand in the shoes of prior mortgagees is stated in sec. 74.
The mortgagee's liabilities where he takes possession of the mort- Liabilities gaged property are set forth in secs. 76 and 77. Rules as to the of mortpostponement of one mortgagee to another are contained in secs. 78-80, the doctrine of "tacking' being abolished by the lastmentioned section. Marshalling securities, where the owner of two Marshalproperties mortgages them both to one person, and then mortgages
ties. one of the properties to another person who has not notice of the former mortgage, may be regarded either as the right of one mortgagee or the liability of another. Section 81 contains a rule on this subject.
The rateable contribution enforceable (a) where several properties, Contribuwhether of one or several owners, are mortgaged to secure one debt, and (b) 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, is provided for by section 82.
Section 83 extends in substance to the whole of British India Payment (except Bombay, the Panjáb, and Burma), and to every description into court of mortgage, the provisions as to payment into Court contained in Bengal Regulation 1 of 1798 as to mortgages by conditional sale. [nder it any mortgagor or other person entitled to redeem may after the principal has become payable and before a redemption
suit is barred, deposit in court the amount of the mortgage debt. The Court then causes notice of the deposit to be served on the mortgagee, who may apply and recover the money. Interest
ceases on the deposit. Procedure. The rest of this chapter relates to the procedure in suits between
mortgagor and mortgagee. Mortgages,' said the Hon. Mr. Evans, when the bill was before the Council, 'were legislated for in Bengal as early as 1798; but as the old Regulations gave a somewhat cumbrous and unsatisfactory procedure and did not cover every class of mortgage, money-lenders had resorted to a simple mortgage-bond, consisting of a covenant to pay and a pledge of the property. This form of mortgage never having been legislated for, there was no protection to the debtor. The practice was for the creditor to get a money-decree, and sell up the mortgaged property without allowing any time for redemption. The sale being an ordinary execution-sale of the right title and interest of the debtor whatever it might be, it was usual, when the same property was pledged to different creditors in different mortgage-bonds, for each creditor to hold a separate sale and leave the purchasers to fight out in court the question of what they had bought under their respective sales. There having been no machinery for bringing together into one suit the various incumbrances on the property, endless confusion had been the result, and the decisions of the Courts upon the almost insoluble problems arising from this state of things had been numerous and contradictory. The result was that the mortgaged property could not fetch anything like its value. The debtor was ruined, the honest and respectable money-lender discouraged, and a vast amount of gambling and speculative litigation fostered. Section 99 therefore provides that where a mort
' gagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not bring it to sale otherwise than by suit under section 67. To this suit all persons interested in the property must be parties (section 85), and under sec. 88 the net proceeds of the sale are applied in payment of what is due to the plaintiff, and the balance is paid to the defendant or other persons entitled to receive it.
LEASES. Chapter V, after defining lease' (sec. 105), and giving a rule (sec. 106) as to the duration of certain leases in the absence of a contract or local law or usage to the contrary, reqnires all
leases of immoveable property from year to year, or for a term exceeding one year, or reserving a yearly rent, to be made by a registered instrument. This agrees with the rule in the Registration Act (III of 1877), sec. 17, save that it omits the power given by that Act to exempt leases for short terms and for petty rents. It also carries out the policy above referred to of rendering the system of transferring immoveable property as far as possible a system of public transfer. All other leases may be made either by an instrument or by oral agreement. The liabilities of the lessor Liabilities are then stated. He must disclose to the lessee any material of lessor. 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. He must, on the lessee's request, put him in possession. He is deemed to contract that if the lessee pays the rent and performs the contracts binding on him he may bold during the term without interruption, and the lessee is thus protected not only against eviction by title paramount to that of the lessor, but also, it seems, against tortious entries. The benefit of this contract is annexed to the lessee's interest as such, and may be enforced by his assigns. Nothing is here said of the lessor's rights, which are correlative to the lessee's liabilities. In particular, the right to distrain is not recognised.
The rights and liabilities of the lessee are then declared. Sub- Rights of ject to the alluvion-law, he is entitled as lessee to any accessions lessee. made to the property during the continuance of his lease. He may avoid the lease if any material part of the property is by vis maior wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let? If the lessor fails to make ang repairs which he is bound to make, the lessee may make them, and deduct the expense from the rent: so if the lessor fails 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. As to fixtures, he may remove at any time during the lease all Fixtures. things which he has attached to the earth, whether for purposes of trade, for agricultural purposes, or for ornament or convenience, provided he leaves the property in the state in which he received it. As to emblements, when a lease of uncertain duration deter- Emblemines otherwise than by the lessee's fault, he or his representatives may take all the crops planted or sown by him, and growing on the property at the determination. Lastly, he may, as a rule,
Otherwise in England, Woodfall, 13th ed. pp. 674, 676.
Liabilities of lessee.
transfer absolutely, mortgage, or sublet the whole or any part of his interest in the property.
The lessee's liabilities are then enumerated. He must disclose to the lessor any fact as to the nature and 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. He must pay or tender at the proper time and place the premium or rent. He must keep and restore the property in as good condition as it was when he entered (subject only to reasonable wear and tear and vis maior), allow the lessor to enter and inspect and leave notice of defects, and make good such defects when caused by the lessee's acts or default. If he becomes aware of proceedings to recover the property or of any encroachment thereon, he must give notice to the lessor. He may use the property and its products as a person of ordinary prudence would use them if they were his own: but he must not use the property for a purpose other than that for which it was leased, or commit any act destructive or permanently injurious thereto. He must not, without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes. Lastly, when the lease determines, he must put the lessor into possession. The Act is silent as to whether the lessor may enter forcibly into possession.
The rights of the lessee's assign or sub-lessee are noticed in sec. 109.
The Act then contains rules (secs. 110, 111) as to the commencement, continuance, and determination of leases. Where & lease determines by notice to quit or by forfeiture, the forfeiture may be waived, and rules as to this will be found in secs. 112, 113. The Court may relieve against forfeiture for non-payment of rent, and the circumstances under which this may be done are stated in sec. 114.
The effect on an under-lease of a surrender or forfeiture of s lease, and the effect of holding over where the lessor assents to the lessee continuing in possession, are stated respectively in secs. 115 and 116.
As local legislation as to the relation of zamíndár and raiyat is so copious and elaborate, the provisions of this chapter do not apply to leases for agricultural purposes, except in so far as the Local Government, with the previous sanction of the Government of India, may declare them to be so applicable, together with, or subject to, those of the local law, if any. The chapter in practice therefore applies only to leases of houses, gardens, mines and quarries.
Chapter VI, which applies to moveable as well as to immoveable property, supplies a defect in the Contract Act. After defining “exchange' in accordance with the draft Civil Code of the State of New York, $ 903, it declares (sec. 118) that a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. The effect of this is to render a registered assurance necessary in the case of an exchange of land worth Rs. 100 and upwards. Sec.
119, founded on an article in the Code Civil, declares that in the absence of a contract to the contrary, the party deprived of the thing he has received in exchange, by reason of any defect in the title of the other party, is entitled at his option to compensation, or to the return of the thing transferred by him.
As regards exchanges of immoveable property, the Act ignores the English rule that there must be an equality in the quantity of the estates exchanged. In India, therefore, an estate for life may be exchanged for a term of years.
GIFTS. Chapter VII treats of Gifts inter vivos, saving donations mortis causå (which are dealt with by the Succession Act, sec. 178) and the rules of Muhammadan law on the subject. It defines gifts”; shows how a transfer must be effected for the purpose of making a gift (a) of immoveable property and (6) of moveable property; requires a registered instrument in the case of gifts of land of whatever value (cf. Act III of 1877, sec. 17, clause a), and, in the case of gifts of moveables, whenever the property given is not delivered: declares that a gift comprising both existing and future property is void as to the latter, and that 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 : shows when a gift may be suspended or revoked; and deals with onerous and with universal gifts of the donor's whole property. Gifts of one's whole property to a relation or friend are not uncommon before an execution or in anticipation of insolvency. For such cases of fraud section 53 provides
when the property is land. But an universal gift may conceivably be honest and comprise moveable property. Section 128 therefore specially provides for such gifts.
The rules of Hindú and Buddhist law are saved from the provisions of this chapter, except only that which requires, in the case of a gift of land, writing, registration and attestation. The rules