Mortgage is French term which means ‘death contract’. The term death contract means that the pledge (promise, bailment, and guarantee) ends only when the loan is repaid, the obligation is fulfilled or when the borrower takes over and/or sells the collateral, the mortgaged property by way of foreclosure. According to the Bouvier’s Law Dictionary (8th) Edition, “Mortgage” is a conditional conveyance of land designed as a security for the payment of money, the fulfilment of some contract, or the performance of some act, and to be void upon such payment, fulfilment or performance. Mortgage works as a security of the loan amount. It is way to secure profit for the bank and/ financial institutions and it is the way of getting loans for the common people, builder and/or company, firm etc.
Fraudulent transfer of property (sec. 53 of tpa, 1882)Vaibhav Goyal
Section 53 of the Transfer of the Property Act, 1882 deals with the requirement of the fraudulent transfer of the Property in the Union of India. The present provision was substituted by Act 20 of 1929, Section 15.
This is a detailed overview of the enforcement of foreign arbitral awards: New York Convention 1958, with a special reference to the section on foreign arbitral awards in Nepalese Arbitration act 2055.
Fraudulent transfer of property (sec. 53 of tpa, 1882)Vaibhav Goyal
Section 53 of the Transfer of the Property Act, 1882 deals with the requirement of the fraudulent transfer of the Property in the Union of India. The present provision was substituted by Act 20 of 1929, Section 15.
This is a detailed overview of the enforcement of foreign arbitral awards: New York Convention 1958, with a special reference to the section on foreign arbitral awards in Nepalese Arbitration act 2055.
This extemporaneous slide show presentation features a compelling, comprehensive overview of injunctions as applied to common real property litigation disputes where monetary remedies presumably provide insufficient compensation; i.e. trespass violations.
recently there ismeaure amendments in the Specific Relief Act and the public infrastruture projects are given preference as due to injunctions there was delay in public projects causing huge loss the public exchequer.
Principles of Trust: Beneficiaries and TrusteesPreeti Sikder
Learning outcome:
Students will
- learn about the reason why trustees take up trusts
- be informed about rights of beneficiaries
- be informed about the nature of duties that trustees carry out
This extemporaneous slide show presentation features a compelling, comprehensive overview of injunctions as applied to common real property litigation disputes where monetary remedies presumably provide insufficient compensation; i.e. trespass violations.
recently there ismeaure amendments in the Specific Relief Act and the public infrastruture projects are given preference as due to injunctions there was delay in public projects causing huge loss the public exchequer.
Principles of Trust: Beneficiaries and TrusteesPreeti Sikder
Learning outcome:
Students will
- learn about the reason why trustees take up trusts
- be informed about rights of beneficiaries
- be informed about the nature of duties that trustees carry out
Sale of immovable property vaibhav goyalVaibhav Goyal
Sale of immovable property has been defined as a transfer of ownership in exchange for a price paid or promised or partly paid and partly promised by the Transfer of Property Act.
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Legal rights of animals edited by vaibhav goyalVaibhav Goyal
“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.”
Contrary to the above stated proposition, the duty of humanity so enforced is not conceived by the law as a duty towards beasts, but merely as a duty in respect of them. There is no bond of ‘Litigation’ between mankind and them. The only interest between the two are the ‘Tight 'which the law recognises in such, a case is the interest and right of society as a -whole in the welfare of the animals belonging to it.
Legal rights (nature, characteristics and kinds)Vaibhav Goyal
In the case of State of Rajasthan vs. Union of India (1977), the Supreme Court defined legal right as, “In a strict sense, legal rights are correlatives of legal duties and are defined as interests which the law protects by imposing corresponding duties on others. But in a generic sense, the word “right” is used to mean an immunity from the legal power of another, immunity is exemption from the power of another in the same way as liberty is exemption from the right of another. Immunity, in short, is no subjection.”
Law according to the john austin vaibhav goyalVaibhav Goyal
John Austin is considered as the “Father of English Jurisprudence”. He is the founder of the Analytical school. He was greatly influenced by the scientific treatment of the Roman law and, therefore, he started scientific arrangement of the English law too. He applied the English method and avoided the metaphysical method which was prevalent in Germany and had German characteristics. Like Bentham, Austin believed that “law” is only an aggregate of individual laws. In his view, all laws are rules the majority of which regulate behaviour. These are either directives or those imposed by general opinion. A directive, whether general or particular, is the expression or intimation of your wish “that another shall do or forbear, issued in the form of a command”. Accordingly, a law in its most comprehensive signification is “rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.
Judicial review of orders by president and governor vaibhav goyalVaibhav Goyal
Encyclopaedia defines “Judicial Review” as the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. Constitutional judicial review is usually considered to have begun with the assertion by John Marshall, fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803) that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress. Constitution of India itself provides some discretionary powers to the Governors. Sometime Governors’ do not exercise their discretionary powers judiciously. Here the role of the judiciary starts and many times judiciary has provided valuable guidelines for the Governors.
The law of crimes as old as the civilisation itself. The crime and the criminal in every society is looked with great hatred, but the study of the crimes and discovering the causes of crimes have remain the greatest attraction among the jurists of the jurisprudence. There always lies necessity of devising some ways and methods to curb such criminal tendencies among the section of the people living in the civilised society. The problem arises as to what acts should be forbidden, or what acts should be selected for punishment by the society or the State. The concept of the crime has been always been dependent on the public opinion.
Conduct of arbitral proceeding vaibhav goyalVaibhav Goyal
Arbitration and conciliation have been the preferred system of resolution of disputes in India from times immemorial. Sir Henry Maine observes that, “In those parts of India, in which village community was most perfect, the authority, exercised elsewhere by the headman, was lodged with what was called the village council or the panchayat.” The prevalent system of arbitration in India made Chief Justice Marten compelled to state in the case of Chanbasappa Gurushantappa vs. Baslinagayya Gokurnaya Hiremath (1927) that “It is indeed a striking feature of ordinary Indian life. And I would go further and say that it prevails in all ranks of life to a much greater extent than is the case in England. To refer matters to a Panch is one of the natural ways of deciding many a dispute in India.” The Orissa High Court in the case of State of Orissa vs. Gangaram Chhapolia (1982), traced the sequence of the formal codification of law on arbitration starting from Bengal Regulations of 1772 and 1780 to Bengal Regulation IX of 1883 which authorised Settlement Officers to refer disputes to arbitration. The Britishers introduced various acts dealing with the law on Arbitration including the Act IX of 1840, the Specific Relief Act of 1878, the Code of Civil Procedure of 1908, the Indian Arbitration Act of 1940 and The Arbitration and Conciliation Act, 1996.
Conduct of arbitral proceeding part 2 vaibhav goyalVaibhav Goyal
Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.
Implications of science and technology on law and society (Vaibhav Goyal)Vaibhav Goyal
Extolling the virtues of technology though is not very difficult yet its baneful effect on the legal norms has been unfortunate. Technology demands more, not less, human work to function. In controlling the catastrophic problems we are exposing ourselves to even more elusive chronic ones that are even harder to address our safety demands more and more vigilance.
Role of Occult Practices/ Black Magic/ Non- Scientific Beliefs in promotion o...Vaibhav Goyal
In India, the interest for animal parts in mythical customs powers poaching and illegal trade, and the unlawful accessibility of these parts supports the rituals and their fundamental convictions. The global illicit trade depicts such people as in reverse and waiting to be taught – however, this is the prevailing substance of imperialism, elitism, and casteism. A few exceptionally colonialist, elitist, bigot, and casteist presumptions outline the less favored/Orient as having legends that should be 'dispersed' by strict pioneers. Nowadays, the trade has been expanded on advanced stages. Likewise, the more significant part of the equivalent is found on YouTube.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
1. MORTGAGE
INTRODUCTION
Mortgage is French term which means ‘death contract’. The term death contract means that
the pledge (promise, bailment, and guarantee) ends only when the loan is repaid, the obligation
is fulfilled or when the borrower takes over and/or sells the collateral, the mortgaged property
by way of foreclosure. According to the Bouvier’s Law Dictionary (8th)Edition, “Mortgage”
is a conditional conveyance of land designed as a security for the payment of money, the
fulfilment of some contract, or the performance of some act, and to be void upon such payment,
fulfilment or performance. Mortgage works as a security of the loan amount. It is way to secure
profit for the bank and/ financial institutions and it is the way of getting loans for the common
people, builder and/or company, firm etc. The Black's Law Dictionary (7th) Edition defines
the term “mortgage” through the following definitions as:
A conveyance of title to property that is given as security for the payment of a debt or
the performance of a duty and that will become void upon performance according to
the stipulated terms.
A lien against property that is granted to secure an obligation (such as debt) and that is
extinguished upon payment or performance according to stipulated terms.
An instrument (such as a deed or contract) specifying the terms of such a transaction.
Loosely the loan on which such a transaction is based.
The mortgagee's right conferred by such a transaction.
Loosely any real- property security transaction, including a deed of trust.”
MORTGAGE IN INDIA
The Transfer of Property Act, 1882 was modelled on the English Law of mortgage. The latter
has been changed by the Law of Property Act, 1925. As a result the mortgage in England has
become a demise (lease) and the condition one of defeasance: A cesser of the term comes in
with the discharge of the mortgage - money. It has been rightly observed in the case of Gopal
v Parsotam (1883), that mortgage as understood in this country cannot be defined better than
by the definition adopted by the legislature in Section 58 of the Transfer of Property Act, 1882.
In case of Kottayya v Annapumamma (1945), a debtor who was not able to repay the amount
of the debt granted to the creditor a right to occupy and enjoy certain land for a period of 20
years. It was held that the transaction was not a mortgage but a lease. In the case of South
2. African Territories Ltd v Wallington (1898), Lord Macnaghten said, "That specific
performance of a contract to lend money cannot be enforced is so well established and
obviously so wholesome a rule, that it would be idle to say a word about it".
S.58 of the Transfer of the Property Act, 1882 defines “Mortgage” as follows:
“Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.—
(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of
securing the payment of money advanced or to be advanced by way of loan, an existing or
future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and
interest of which payment is secured for the time being are called the mortgage-money, and the
instrument (if any) by which the transfer is effected is called a mortgage-deed.
In the case of Dattatreya Shanker Mote v Anand Chintaman Datar (1974), the court observed
that a charge is wider than a mortgage and as such a mortgage is included in it also. Hence,
every mortgage is a charge, but every charge is not a mortgage.
(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the
mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or
impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall
have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied,
so far as may be necessary, in payment of the mortgage-money, the transaction is called a
simple mortgage and the mortgagee a simple mortgagee. It could be summarised as in a simple
mortgage, the mortgager does not deliver the possession of the mortgaged property. He finds
himself personally to pay the mortgage money and agrees either expressly or impliedly, that in
case of his failure to repay, the mortgagee shall have the right to cause the mortgaged property
to be sold and apply the sale proceeds in payment of mortgage money. The essential feature of
the simple mortgage is that the mortgagee has no power to sell the property without the
intervention of the court. The mortgagee can:
Apply to the court for permission to sell the mortgaged property, or
File a suit for recovery of the whole amount without selling the property
(c) Mortgage by conditional sale.—Where, the mortgagor ostensibly sells the mortgaged
property— on condition that on default of payment of the mortgage-money on a certain date
3. the sale shall become absolute, or on condition that on such payment being made the sale shall
become void, or on condition that on such payment being made the buyer shall transfer the
property to the seller, the transaction is called mortgage by conditional sale and the mortgagee
a mortgagee by conditional sale: 1[Provided that no such transaction shall be deemed to be a
mortgage, unless the condition is embodied in the document which effects or purports to effect
the sale.] It could be summarised as the mortgage in which the mortgager ostensibly sells the
property to the mortgagee on the following conditions:
The sale shall become void on payment of the mortgage money.
The mortgagee will retransfer the property on payment of the mortgage money.
The sale shall become absolute if the mortgager fails to repay the amount on ascertain
date.
The mortgagee has no right of sale but he can sue for foreclosure.
In the case of Natesa Pathar v Pakkirisamy Pathar (1997), the condition of sale and resale was
engrafted in the same document. The purchaser was specifically prohibited from encumbering
the property within the period of five years stipulated for repurchase. There was a substantial
difference between the actual value of the property and consideration as stipulated in the deed.
The transaction was held to be a mortgage by conditional sale. In another case of Chunchun
Jha v Ibadat Al (1954), the Supreme Court held that if the sale and repurchase is embodied in
separate documents then the transaction cannot be a mortgage whether the documents are
contemporaneously executed or not.
(d) Usufructuary mortgage.—Where the mortgagor delivers possession 1[or expressly or by
implication binds himself to deliver possession] of the mortgaged property to the mortgagee,
and authorises him to retain such possession until payment of the mortgage-money, and to
receive the rents and profits accruing from the property 2[or any part of such rents and profits
and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly
in lieu of interest 3[or] partly in payment of the mortgage-money, the transaction is called an
usufructuary mortgage and the mortgagee an Usufructuary mortgagee. In the case of Ferozshah
v Sobhat Khan (1933), it was observed by the court that it is not necessary that the mortgagee
should take physical possession, for the mortgagor may continue in possession as lessee of the
mortgagee; but unless there is a clause providing for the mortgagee going in possession, there
cannot, of course, be a usufructuary mortgage.
4. (e) English mortgage.—where the mortgagor binds himself to repay the mortgage-money on a
certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a
proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as
agreed, the transaction is called an English mortgage.
In the case of Ramkinkar v Satya Charan (1939), the Privy Council held that Sec 58 (e) cannot
be construed as declaring an English mortgage to be an absolute transfer of the property, but
as merely declaring that such a mortgage would be absolute, were it for the proviso for
retransfer. In the case of Narayana v Venkataramana(1902), the court had stated three essential
ingredients for English mortgage which could be stated as follows:
First, the mortgagor has to bind himself to repay the mortgage money on a certain day.
Secondly, the property mortgaged is transferred "absolutely" to the mortgagee.
Thirdly, this transfer is subject to a proviso that the mortgagee will recover the property
to the mortgagor upon payment of the mortgage - money on the date fixed for
repayment.
(g) Anomalous mortgage.—a mortgage which is not a simple mortgage, a mortgage by
conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of
title-deeds within the meaning of this section is called an anomalous mortgage.] In the case of
Madho Rao v Gulam Mohiuddin (1919), the Privy Council held that an anomalous mortgage
is, one which does not fall within any of the other five classes enumerated. While considering
an anomalous mortgage, the intention of the parties must be gathered from the terms of the
instrument as controlled by the provisions of the Act.
(h) Mortgage by Deposit of Title deeds- Sec. 58(f) of the Act states that Where a person in any
of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other
town which the State Government concerned may, by notification in the Official Gazette,
specify in this behalf, delivers to a creditor or his agent documents of title to immovable
property, with intent to create a security thereon, the transaction is called a mortgage by deposit
of title - deeds. This is called in English law an equitable mortgage. The court in the case of
Webb v Macpherson (1904), held that the term "equitablemortgage" is not appropriate in India,
for the law of India knows nothing of the distinction between legal and equitable estates. In
case of K.J. Nathan v S.V. Maruthi Rao (1965), the Supreme Court observed that, what
constitutes the transaction is delivery with the intention of creating a security. Hence in a case
where physical delivery takes place outside the notified town, but the intention to create a
5. mortgage is formed after the deeds are in one of the notified towns, the Supreme Court applied
the section. The requisites of a mortgage by deposit of title deeds are:
a debt;
a deposit of title - deeds in notified town; and
An intention that the deeds shall be security for the debt.
In accordance with the provisions of Section 96 of the Transfer of Property Act,1882, mortgage
by deposit of title deeds, though without writing or by any deed, is equivalent to a simple
mortgage.
ESSENTIALS OF MORTGAGE:
The valid essentials of a mortgage include as follows:
Transfer of Interest- The first thing to note is that a mortgage is a transfer of interest in the
specific immovable property. The mortgagor as an owner of the property possesses all the
interests in it, and when he mortgages the property to secure a loan, he only parts with a part
of the interest in that property in favour of the mortgagee. After mortgage, the interest of the
mortgagor is reduced by the interest which has been transferred to the mortgagee. His
ownership has become less for the time being by the interest which he has parted with in favour
of the mortgagee. If the mortgagor transfers this property, the transferee gets it subject to the
right of the mortgagee to recover from it what is due to him i.e., the principal plus interest.
Specific Immovable Property- The second point is that the property must be specifically
mentioned in the mortgage deed. Where, for instance, the mortgagor stated “all of my property”
in the mortgage deed, it was held by the court that this was not a mortgage. The reason why
the immovable property must be distinctly and specifically mentioned in the mortgage deed is
that, in case the mortgagor fails to repay the loan the court is in a position to grant a decree for
the sale of any particular property on a suit by the mortgagee. The words "specific immovable
property" make it necessary to specify the immovable property in order to create a mortgage.
The description must at least be sufficient to identify the property. It has been held in the case
of Indian Insurance & Banking Corpn v Paramasiva Mudaliar (1957), that machinery in a
mortgaged building does not form part of the security, unless it is attached to the building for
the permanent beneficial enjoyment thereof.
6. To secure the payment of a loan- Another characteristic of a mortgage is that the transaction is
for the purpose of securing the payment of a loan or the performance of an obligation which
may give rise to pecuniary liability. It may be for the purpose of obtaining a loan, or if a loan
has already been granted to secure the repayment of such loan. There is thus a debt and the
relationship between the mortgagor and the mortgagee is that of debtor and creditor. When A
borrows 100 bags of paddy from B on a mortgage and agrees to return an equal quantity of
paddy and a further quantity by way of interest, it is a mortgage transaction for the performance
of an obligation.
S.59 of the Transfer of the Property Act, 1882
Section 59 of the Transfer of Property Act, 1882 provides as, where the principal money
secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title
deeds can be effected only by a registered instrument signed by the mortgagor and attested by
at least two witnesses. Where the principal money secured is less than one hundred rupees, a
mortgage may be effected either by a registered instrument signed and attested as aforesaid or
(except in the case of a simple mortgage) by delivery of the property". The words "other than
a mortgage by deposit of title deeds" were inserted by the Amending Act 20 of 1929. In either
case, a simple mortgage can only be effected by a registered instrument. Mortgage by deposit
of title deeds has been specifically excluded from the purview of this section and no registered
instrument is necessary to effect such a mortgage. The words "principal money secured" in the
section show that interest is not to be taken into account in estimating the amount secured. A
mortgage does not become complete and enforceable until it is registered.
REFERENCES
Textbook on The Transfer of Property Act, Dr. Avtar Singh, Universal Law Publishing
Co. Pvt. Ltd., 2006
The Transfer of Property Act, Dr. Hari Singh Gour, Delhi Law House, 2004
Principles of the Law of Transfer, S. M. Shah, N. M. Tripathi Pvt. Ltd., 1969
The Transfer of Property Act, 1882, Prof. G. P. Tripathi, Central Law Publications,
2005
AUTHOR DETAILS
Vaibhav Goyal is a 3rd Year student of Panjab University and is pursuing BA.LLB (H).