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that a Hindú father may, in case of necessity, resume gifts made to his son', and that an undivided coparcener cannot give joint family property to a relative, much less to a stranger, thus remain unaffected.
ACTIONABLE CLAIMS. Chapter VIII relates to the transfer of actionable claims, i.e.claims which the civil courts recognise as affording grounds of relief. It gives rules as to the application and extent of the warranty of the solvency of a debtor. It declares that, as a rule, when an actionable claim is sold, he against whom it is made is discharged by paying the buyer the price and incidental expenses of the sale with interest from the date of payment. Section 136 renders it illegal for a judge, pleader, or other officer connected with courts of justice to buy any actionable claim falling under the jurisdiction of the court in which he exercises his functions. Lastly, the chapter contains rules as to mortgages of debts. It does not apply to negotiable instruments.
History of The kernel of the bill which became the Transfer of Property the Act.
Act was a draft prepared in England by the Indian Law Commission, which was sent out to India in 1870, by the Duke of Argell, then Secretary of State, with instructions to take the necessary steps for passing it into law. It contained rules as to 'assurances' of immoveable property; charges; leases; settlements; apportionment; certain rights and liabilities of limited owners; the discretion of the Courts to deal with settled land ; powers; joint-ownership; fourteen sections about trusts and the assignment of choses in action. It was heterogeneous, ill-arranged, and ill-drawn, and parts of it were neither necessary nor expedient. The sections on powers, for instance, were unnecessary, and those relating to charges were inexpedient, as they would have given a mortgagee nothing but a right to have the amount of his debt raised by sale of the property pledged to him. No mortgagee was to take possession of the mortgaged land; no mortgagee was to foreclose. Not only the English, but all the Native forms of mortgage were ignored. It was felt by Mr. (now Lord) Hobhouse, the then law-member of the Governor-General's Council, that the amount of simplicity gained would not justify the amount of disturbance created.
However, in obedience to the orders of the Secretary of State, the Bill, with some slight amendments by Mr. Hobhouse and myself, was introduced in 1877, referred to a Select Committee, and circulated | Dáyabhága, ii. 57. 9 Mad.
273. See Mayne, H. L. $ 328.
to the Local Governments for publication and translation. A mass of criticism and suggestion came in, and the bill was revised by the writer and republished in 1878, and a second time sent to the Local Governments. Another mass of criticism came in, and it became clear that the bill, if it were to go on at all, must be relieved of the mass of unnecessary matter, and made more homogeneous, confined, in other words, to the subject of the transfer of property by act of parties, that is to say by contract or gift. The bill was therefore recast, circulated for a third time to the Local Governments, and referred to a commission composed of Sir Charles Turner, Mr. Justice West, and the writer. This commission, of which the writer was both president and draftsman, made several amendments, both in the wording and substance of the bill; but the important additions were only three. First, they set out in full on the face of the bill several rules applying to transactions inter vivos which in the original draft were only expressed by way of reference, mutatis mutandis, to certain sections of the Succession Act dealing with (e.g.) election, contingent bequests, conditional bequests, and bequests with directions as to application and enjoyment, and which therefore would never have been applied by unprofessional judges without risk of serious error. Secondly, they required, at the suggestion of Sir Henry Maine, who was a strong advocate of the continental system of a public transfer of land, a written and registered instrument in certain cases of sales, mortgages, leases, exchanges, and gifts of immoveable property. Thirdly, at the suggestion of one of the Hindú critics of the bill, they inserted a chapter on Gifts.
The recommendations of this Commission were duly communicated to the Select Committee. Most of the changes proposed were adopted and the bill became law in 1882. Judging from the Indian Law Reports of the last four years, and from the almost complete absence of amending legislation, it has worked smoothly, and, except in one instance, given rise to no serious doubts as to its meaning or effect. The question referred to is whether the provisions of the Act relating to procedure apply to mortgages executed before it came into force ? Both the High Courts at Allahabad and Calcutta have answered this question in the affirmative.
THE TRANSFER OF PROPERTY ACT, 1882.
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES. (A)-TRANSFER OF PROPERTY, WHETHER MOVEABLE OR IMMOTEABLE. • Transfer of property'defined
5 What may be transferred
6 Persons competent to transfer
7 Operation of transfer
8 Oral transfer
9 Condition restraining alienation Restriction repugnant to interest created Condition making interest determinable on insolvency or attempted
alienation Transfer for benefit of unborn person
13 Rule against perpetuity . Transfer to class some of whom come under sections 13 and 14
15 Transfer to take effect on failure of prior transfer
16 Transfer in perpetuity for benefit of public
17 Direction for accumulation
18 Vested interest
19 When unborn person acquires vested interest on transfer for his benefit . Contingent interest Transfer to members of a class who attain a particular age Transfer contingent on happening of specified uncertain event
23 Transfer to such of certain persons as survive at some period not specified 24 Conditional transfer Fulfilment of condition precedent
26 Conditional transfer to one person coupled with transfer to another on failure of prior disposition
28 29 30
Ulterior transfer conditional on happening or not happening of specified
certain event happens or does not happen
performance Transfer conditional on performance of act, time being specified
Apportionment of benefit of obligation on severance
(B)-TRANSFER OF IMMOVEABLE PROPERTY. Transfer by person authorised only under certain circumstances to
transfer Transfer where third person is entitled to maintenance Burden of obligation imposing restriction on use of land,
or of obligation annexed to ownership but not amounting to interest
43 44 45
49 50 51 52 53
OF MORTGAGES OF IMMOVEABLE PROPERTY AND CHARGES.
SECTION Mortgage,'' mortgagor,' and 'mortgagee' defined
38 Simple mortgage
b. Mortgage by conditional sale.
ib. Usufructuary mortgage
it. English mortgage
ib. Mortgage when to be by registered instrument
59 RIGHTS AND LIABILITIES OF MORTGAGOR, Right of mortgagor to redeem
60 Redemption of portion of mortgaged property.
ib. Right to redeem one of two properties separately mortgaged
61 Right of usufructuary mortgagor to recover possession
62 Accession to mortgaged property
63 Accession acquired in virtue of transferred ownership
. Renewal of mortgaged lease
64 Implied contracts by mortgagor
65 Waste by mortgagor in possession.
66 RIGHTS AND LIABILITIES OF MORTGAGEE. Right to foreclosure or sale
67 Right to sue for mortgage-money
68 Power of sale when valid
69 Accession to mortgaged property
70 Renewal of mortgaged lease Rights of mortgagee in possession Charge on proceeds of revenue-sale
73 Right of subsequent mortgagee to pay off prior mortgagee
74 Rights of mesne mortgagee against prior and subsequent mortgagees 75 Liabilities of mortgagee in possession
76 Loss occasioned by his default
iB. Receipts in lieu of interest
117 PRIORITY. Postponement of prior mortgagee
;; Mortgage to secure uncertain amount when maximum is expressed 79 Tacking abolished .
80 MARSHALLING AND CONTRIBUTION. Marshalling securities
8: Contribution to mortgage-debt
82 DEPOSIT IN COURT. Power to deposit in Court money due on mortgage
83 Right to money deposited by mortgagor
ib. Cessation of interest
84 SUITS FOR FORECLOSURE, SALE OR REDEMPTION. Parties to suits for foreclosure, sale and redemption
85 FORECLOSURE AND SALE. Decree in foreclosure-suit