Mortgage not described in section 58, clauses (b), (c), (d), and (e) .

98

Lessor, lessee, premium and rent defined

Duration of certain leases in absence of written contract or local usage

105

ACT No. IV OF 1882.

PASSED BY THE GOVERNOR GENERAL OF
INDIA IN COUNCIL.

(Received the assent of the Governor General on the 17th February, 1882.)

An Act to amend the law relating to the Transfer of Property by act of Parties.

WHEREAS it is expedient to define and amend certain parts Preamble. of the law relating to the transfer of property by act of parties1; It is hereby enacted as follows:

CHAPTER I.

PRELIMINARY,

1. This Act may be called 'The Transfer of Property Act, Short title. 1882';

Commence

Extent.

It shall come into force on the first day of July, 1882;
It extends in the first instance to the whole of British ment.
India except the territories respectively administered by the
Governor of Bombay in Council, the Lieutenant-Governor of
the Panjab, and the Chief Commissioner of British Burma.

But any of the said Local Governments may, from time to time, by notification in the local official Gazette, extend this Act to the whole or any specified part of the territories under its administration 2.

As to transfer by act of law, see infra, sec. 2, cl. (d).

That such a provision is valid see

Empress v. Burah, 4 Cal. 172, 182, per
Lord Selborne.

Power to exempt.

Repeal of
Acts.

Saving of

certain enactments, incidents, rights, liabilities, &c.

And any Local Government may, with the previous sanction of the Governor General in Council, from time to time, by notification in the local official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such Local Government, from all or any of the following provisions, namely, sections 54, paragraphs two and three, 59, 107, and 1231.

Notwithstanding anything in the foregoing part of this section, sections 54, paragraphs two and three, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 1877, under the power conferred by the first section of that Act or otherwise 2.

2. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect 3— (a) the provisions of any enactment not hereby expressly repealed:

() any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force:

(c) any right or liability arising out of a legal relation constituted before this Act comes into force 5, or any relief in respect of any such right or liability: or

(d) save as provided by section 57 and chapter IV of this

1 This clause is here printed as amended by Act III of 1885, sec. 1.

2 This clause was added by the same Act, sec. 2.

8 i. e. in malam partem.

The effect of this is to maintain intact the statutory force which the Indian legislature had given to local usage in the Panjab (Act IV of 1872, sec. 7) and Oudh (Act XVIII of 1876, secs. 4, 8). Local usages are saved also by secs. 36, 98, 106, 108, infra.

5 Such as, for instance, a right of pre-emption, 4 Ben. A. C. 219: the right of the holder of a decree authorising the sale of property hypothecated to him, 12 Cal. 437: the right to relief against a penal clause in a

lease, 6 Mad. 330. See too 8 All. 403.

This, of course, does not save the procedure in foreclosure which existed (under Ben. Reg. XVII of 1806, secs. 7, 8) when the mortgage was made, 6 All. 262, followed in 12 Cal. 583. 'No one has a vested right in any particular form of procedure,' per James L.J., Warner v. Murdoch, L. R., 4 Ch. Div. 752. But the words 'any relief in respect of any such right or liability' preserve to a bai-bil-wafa mortgagor the right which he had under Ben. Reg. XVII of 1806 to pay off the mortgagemoney, and thus prevent the mortgage being foreclosed, within one year from the date of notice, 11 Cal. 587; and see 12 Cal. 436; 8 All. 403, 405.

Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction 1: And nothing in the second chapter of this Act shall be deemed to affect any rule of Hindú, Muhammadan or Buddhist law 2.

3. In this Act, unless there is something repugnant in the Interpre

subject or context,

tation

clause.

'immoveable property' does not include standing timber, 'immovegrowing crops or grass:

able pro

perty':

'instru

'instrument' means a non-testamentary instrument: 'registered' means registered in British India under the ment': law for the time being in force regulating the registration of tered': documents:

' attached to the earth' means—

(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached:

regis

' attached

to the

and a person is said to have notice' of a fact when he notice': actually knows that fact, or when, but for wilful abstention

3

from an inquiry or search 3 which he ought to have made, or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872, section 229 4.

ments re

4. The chapters and sections of this Act which relate to con- Enacttracts shall be taken as part of the Indian Contract Act, 1872. lating to And sections 54, paragraphs two and three, 59, 107, and contracts 123 shall be read as supplemental to the Indian Registration Act, 1877 5.

1 2 Bom. 541. That a decree for specific performance of a contract for the sale of immoveable property, coupled with the payment of the purchase-money, is enough to transfer the ownership to the vendee, see 5 Bom. 559-560.

This saves the rule that Native religious endowments cannot be transferred. It also exempts settlements made by Natives from the statutory rule against perpetuities contained in

sec. 14. It leaves untouched the de-
cisions of the Judicial Committee in
8 Moo. I. A. 66 and the Tagore Case,
9 Ben. 377, and of the Indian Courts
in 7 Cal. 269 and 2 Ben. O. C. J. 11.

in a book or index kept under
the Registration Act.

i. e. in the course of the business transacted by him for the principal. See more as to notice II Ben., P. C., 54.

5 This clause was added by Act III of 1885, sec. 3.

to be taken

as part of Act IX of 1872.