The Jammu and Kashmir Transfer of Property Act, 1920

Act 42 of 1920

Keyword(s):
Immovable Property, Instrument, Registered, Attached to the Earth,
Actionable Claim, Transfer of Property

Amendments appended: 20 of 2002, 29 of 2002

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-

298 THE TRANSFERS OF PWERTY ACT,

25. 'Gmditional W e r .
26. Fulfilment of ' condition
. precedent. , ,-.

.27. ~ond$@&al+ transfer to

.peison -pled Mth traiisfer to
..

28. T3atriw &bt d i t i o d on

. w n g qr not-bappting of . but not
spaifkd evmt: - ,'
. .
29. ~ulfilment' and
subsequent.
30. Priordisposition not affected by
invalidity of ulterior disposition.
31. Cmdition that transfer
cerise to have effect in case
specified uncertain event
+

happens or dam mt happen.

32, ' .OO&&jm,
W‘
invalid.
3 3 . ~ r a a s f e r conditional on
performance of act,
being spifidfol;pe&merncer. '
C

34. ~ r a n i f e r r c o ~ i ~ i o

." Election.
35. E l d o n when IWXWMY.

b Apportioment, .

interest ofprson entitled.

.r

. .
 300

SECTION
P
THE TRANSFERS OF PROPERTY ACT, 197 (1920 AD.)
I

75. Omitted. of redeetnpng co-

76. Liabilitlos of mortgagee in
i
possession.
I
Loss occasioned by his ddault. 97. ~mitfdd. ' 1
77. Receipts-in Iiea' of interest.
Priority. 98. Rights km
to a nand liabilities /ofopwes ~

78. Postponement of prior

mortgagee. 99. Omit

79. Mortgagee to secure uncertain

Charges. 1
amount when maximum is 100. '
expressed.
80. Omitted.
Marshalling and Contribution.
81. Marshalling k r i t i e s .

f
82. Contribution to mortgagedebt. lo3- Notice etc.9 to or biy Person
incom tent to contrakt.
Deposit C Court. !
104. Power to Jnalre rules.
83. Power to deposit in Court money
due on mortgage. HAFTER V. i
,Right to money deposited by Immoveabk h p e r t y . 1

mortgage. 105. " " defined.

II \

84. Cessation of interest.

Suits of Foreclosure, Sale or

Redemption.
I
85 to 90. Omitted.
I
Redemption.
91. Persons ,who may sue for
redemytian.
i

92. Suborgation.
93. Frohibition of tacking. .
9 i a g h t s of m- mertgagct.

_I ^-
 THE TRANSFERS OF P R O ~ ~ R TACT,
Y 1977 (1920 AD.) 301
** I '

SECTION c SECTION '

109. Righksp~
‘,, lessor's tqpdak. 123. ~ r a d e ?my
r @%x%ed.
110. Exclusion of day on which 124. Offt of eds~ingand future
*rM cornom-. lmwc
. . &ration of leau.for P year. 1 . - Gift to -1, whom one
"k
S
,

not a+t.
Option to determine lease. / ,

126. When-gitt may be saqmukd

1 1 1. Determination of lease. or revoked.
1 12. Waiver of forfeiture. 127. Qnemgifts;.
. '"">

113. waiver of notice to qait. - bOC1iagiff

M dirqh~ifi
peran.
114. Relief against forfeiture for
nondpyment of rent. 128. Universal donee,
li4-A.Re!ief against forfeiture in 129. Saving of &magion mortis
certain ather r;ases. cause and Muhaqtnpdzin law.
115. Effect of surrender and CHAPTER VIII. ,
forfeiture on under-leases.
Of Trrnafer6 oC k
116. ' Effect of holding over. _ ciaima
117. Exemption of leases for . claim.
130. Transfer of aclbEUbb3 .
agricultutal purposes. 131. Hotice lo be in writing,
CHAPTER IV.- signed.
of Exb-& 132. Liability of transfkree of
adionable: claim.
118. "Exchange" defined.
133. ~ ; l & n t y o f s a l v cofdebtor.
~
l19. R%ht 'of m q d @ d of 134. Mor(gpg&
thing rec;eived in exchange.
135. Assignment of rights under
120. Rights and4iabilitiesof parties. marine or fire *icy of
insuance.
121. Whange of money.
136. Incap@ of ~ B c e conm%ed
n
CHAPTER VI. . with C a r of ~ustjce.
01 ~ l t t s . 137. Saving of negotisbie
instrumen&, etc.
122. '"Gib" Wined.
138. (1) Transfer of iimavdk
kcceptanctwhuntabe propity crfter d* ngi*
mde. Irsti3n.

"+a=
* * k
. f
THE TRANSFERS OF PROPERTY ACT, 1977 (1920 AD.) 303

THE TRANSFERS OF PROPERTY ACT, 1977

(1920 AD.)

(Act No. XLII of $vt. 1977).

[Sanctioned by His Highness the Maharaja Sahib Bahadur per Chief

Minister's endorsement No. 8372, dated 11th September, 1920 read with State
Council Resolution No. 1, dated 8th April 1925. (Notflcation No. 14-15/81.]
An Act to amend the law relating to the transfer of property
by act of parties.
Preamble.--Whereas it is expedient to define and amend certain parts of
law relating to the transfer of property by act of parties ; It is hereby enacted
as follow :--
CHAPTER I.
Preliminary.
1. Short title, extent and commencement.--(l) This Act may be called
the Transfer of Proplerty Acf, 1977.
(2) It extends to the whole of Jammu and Kashmir State. It shall come into
force on the 1st day of Baisakh, 1978.

2. Saving of certain enactments, incidents, rights, liabilities, etc.-Nothing

herein contained shall be deemed to affect.--

(a) the provisions of any enactment not hereby expressly repealed ;

(b) 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, or any relief in respect of any such right or
liability ; or

(d) save as provided by section 57 and Chapter IV of this Act, any transfer
by operation of law or by, or in execution of, a decree or order of a Court of
competent jrrtisdiction ;

and mtbing in the second chapter of this Act shall be deemed t i eflect any
nrle of Hindu, Mohammadsn, or Bu&thist law, subject to the limitation
oonthid @I &om 13, 14, 15, 16 and 20, no disposition of property made
by a @ d u shall be invalid by reason only that the person for whose benefit
it may itwe been made was not in existence at the date of such disposition.
304 THE TRANSFERS OF PROPERTY ACT,

3. Interpretation clause.--En this Act, unless

in the subject or context,-
"immovable property" doeswot include
grass ;
"instrument" means a non-testamenmy inst ~

relati~nto an instrument, means at

whom has seen the executant sign or
seen some other person sign the instrument in
of tip executanr, or has received Era
of his signature or mark, or of the sigaat
of whom has signed the instrument in t
shall 'not be necessary that more tha
been present at the same time and no
necessary ;]
I
"registered" means registered in the State under law for the*me being
1
in force regulating the registration of documents ; I
- "attached to the earth" means- ! I
,
(a) rooted in the earth, as in the case of

(b) imbedded in the earth, as in the case of

(c) attached t$ what is so imbedded for the nt W r c i a l tr?joyment

of that to which it is attached ; I j.

I
*actionable claim" means a claim to
by mortgage of immovable prcpetty or by
propeity, ar to any beneficial interest
possession, either actual or constructive,
recognise as affording grounds for relief,
interest be existent, accruing, conditional o

Y''a person is said' to have notice" of a fact

fact, or when, but for wilful abstention from
ougtn to have made, or gross negligence, he

&planation I.-Where any transaction relating

required by law to be and has been effsded by registe
acquiring sttch property or myijgart of, or sham w

I I
1. la sctioq 3 Qefilutign,of "aaerttd" added by Act VI of 199d. 1 '
2. 1 n ~ i o n 3 d c f i m t ; a t ~ ~ n o t i c c " ~ ~ ~ ~ d ,~ 0 f t ~ 0 1 . t

I
 T ~ t bT?&?"TERS OF PROPERTY ACT, 1977 (1920 AD.) 365

iwtr~rn-nt-,??~ bden registered under s u b d o n (2) of nctiDo 30 of the

Registration Act, 1977 from the earliest date on which any memorandum of
91& registered instrument has been hled by any Sub-Rqistrar within whost:
sub-district any part of the property which is being acquired, os of the property
wherein a share or interest is being acquired, is situated.

Explanation 11.-Any pemn squiring any immaveable property or any

share or interest in any such property shall be deemed to have notice of tb
title, if any, of any person who is for the time being in actual possession &ereoff

Explanation IIl.-A person shall be deemed to have had notice of any fact
if his agent acquires notice therbf whilst acting on his behalf in the course
of business ts which that fact is material :
Provided that, if the agent fraudulently corrceals the fact, the pn?llcipal shall
not be charged with notice themf as aminst any pemn whio was a patty to
or othemie cognizant of the fraud].

4 . Enactntents relating to contracts to be taken QS part ofCosrk.act Act.-

The chapters and section of this Act which relate to contracts shall be t a b l
as pa~tof the Contract Act, 1977.
And d o n 54, paragraphs 2 and 3, 59, 107 and 123 shall be re@ as
supplemental to the Registration Ad, 1977. -

CMP'ER 8.
Of' Transfers of Pmprty by act ef P a r t k

5. ' 'Transferofpnogerty " defined--In tbe followingsectims "

ppetty" means an act by whkh a liviag peason cmcys prupty,
or in fuaue, to one or mote persons, WhdhEI living or d m n ~f tL)
'[ortohhsdfj a n d o n e o r ~ o t t l m ~ ;md"tutrc~sfcf&*
tP to ~~ such act.
g g this section "living pemoa"

a f f e aqy law f
w the time being in time
or by comganies, associations gr W e s of
6. #%at rrtay be transfewed-

in fm.
 1
I

306 THE TRANSFERS OF PROPERTY AC , 1977 0920 ADI)

. 1
(a) The chance of an heif-apparent ng to an estatd, the chance of
a relation obtaining a legacy on the d
possibility of a like nature, cannot be k1
kins~nan,or y other mere
d.

(b) A mere right of re-entry for breach of

+
be transferred to any oze except thc owner of

(c) An easement canna be transferred from thc do mat heritage.

I.p'
(d) AXEinterest in property restricted in
pemnaliy cannot be transferred by Rim.
i
j(dd) A right to future maintenance, in what
or detcrrrdned, cannot be t r a n s f d ] . i
I
(e) A mere right to sue cannot be I
I
(f) A public officc: cannot be transferred, tbc p
a4
l of a public
officer, whether before or after it has become I
I
I
1&) Stipends allowed lo military and civil ners of Gcfvement and
I
political pensions cannot be transferred.
1
Ch) No transfer can be made (1)

disqualified ito be trnrderee.

(i) Nothing in this &on shall be d

an estate!in respect of

tenant, hrmer or iessce.

entitled to transferable property,

in farce.
 8 '
THE TLWSFERS'OF PROPERTY ACT,
2

1977 (1920 AD.)

incident indude, wbere the property is land, thy easemats aaDcxat

307
I
themto, the rents and profits thereof a u m h g aAer tBe transfer, and ali thbgs
attached LO the earth.;

a d , whne the property &machinery attach4 to the earth, the m0-k '

aaas-; *
.and, wAcre the pmperty is a house, the casements amrexed t h e r e , the rent
-ther#bacguifig after the trader, and the lodrs, keys, ban, doors, &rindowS,
and all otbs things proviw for permanent usetkewith ;.
and, where the property is a debt or other wtiimable claira, the semrities
*
t h e d r (except where they are also for other debts or claim not ,pmderred
to the tran&.ce), but not arrears of interest accrued before the transfer ;

artd, w h m the pperty is. money or ether property yieicfing incorme, the
I
interest or hame thereof accming afhx the tmdbr takes effect.
I.

9. Oral Imn#er.--A transfer of pmpry m y be made withouf writ@ in '

every case in which a writing is not expme
l xpressyl mptir8t.i by law.
i s
lo. C d t i o n restrainiv- alienatitm.-Whe~~.property is trms&md
subject to a ooladitipn or limitation absolutdy restmining the tttlnsfe~ecor any
pemn chiming under him fm parting with or disposing of his irrteiW in
the p~qwcty.the wmdition or limitation is Goid, me@ in the case of a kase
whcn the ooBditMns is EM the benefit of the iessw or those chiming under
him : Provided that property may be transEerred to or for the W i t of a,
woman, so that she shall not have pcnver Wing her ~mrriage& tran&r or
charge the m e cw here benefiCial interest therein.
I

11. &sIri&ion repugnant to iptemst tmy#~Fcrl--WBere, on a um&x of

pqwty, aniaeefesttlweiaiscreateb infhmrofanypemn,tatt
the rems d the & m s k direct that such himi%&skall be applied M enj~pd
by hid in a garticwtar manner, he sW1 b c . ~ c tod mceivc mi digpose af
such inWest as if &ere were no wtch 4 -.
'fWhcreanyswhdirectionliasbecnaredeiaIcspeaafos~*og
for the pnrpoe3e of kmiq the
praperty, notking in tbis saEtioa
my right which the fmsfkm may haw to d o a x w h di& crr aay
remedy which he may have in mspeU of a beach thereof.)
12. C d l m making in on iWm%yor
a # u n a t i r e property is t o a ~ ~ r
ntatdaganyint~tBer+n,r~edatg;iveRtoo~forttrtbislrcSflafrq
 THE TRANSFERS OF PROPERTY
i

I
person, to case on his becoming insolvent r endeavourin to transfer or
dispose of the same, such condition or limita 'on is void.
ii
Nothing in this section applies to a conditi n in a lease f r the benefit of
the lessor or those claiming under him. I 4
13. Transfer for benefjt of unborn
property, an interest therein is created
existence at the date of the transfer, subj
same transfer, the interest created for the
effect,unless it extends to the whole oft
i6
s.--Where, o a transfer of
benefit of perspn not in
interes created by the
such perw shall not take
g interest f the transfcror
in the property. I
I
A transfers property of which
intended wife successively for t
1
B in trus for A and his
eat11/of the survivor,
for the eldest son of the inten
second son. The interest
take effect, because it does
in the propefty.
1
nd afier h s dmth for A's
elde t son does not
A's re aining interest
I

14. Rule against perpetuity. --No transfer

an interest which is to take effect after the life
at the date of such transfer, and the minori
existence at the expiration of t h t period,
the interest created is to belong.
15. Transfer to class some of whom
on a transfer of property, an interest there
of persons with regard to some of whom
of the rules contained in sections 13 and
those persons only an4 not in regard to
'[16. Trans/cr to take e j f e on failure
of any of the rules contained in sections
the benefit of a person or of a class of
or the whole of such class, any
intended to take effect after or
17. Direction for accumulation.-(1)
property direct that the income arising
either wholly or in pan during a
(a) the life of tke transferor, or I 1
a periad of eighiken yeaPr fmm the datelof ths uansfcr.jauh direction
shall, save as h i d e r provided, be void to (be extent to wl/ich the period
1. In & 15 last wo& wbaituted fw "u regarch-tlu\whole claw" by
2. Sections 16.17 aad l(1 rubc'ited by Act VI of 1996.
I
 I

THE TRANSFERS OF PROPERTY ACT, 1977 (1920 -AD.) 309

1 .
during which the accumulation is directed exceeds the longer of the aforesaid
p r i g s , and at the end of such last mentioned period the properly and the
income thereof shall be disposed of as if the period during which tbe ..-,
accumulation has been directed to be made has elapsed.
(2) This section shall not affect any direction for accumglation for the
purpbse 6f--
1

(i) the payment of the debts of the transferor or any other person taking
any interest under the transfer, or
(ii) the provision of portions for children or remoter issue of the- Ptansferor
or of any other person taking any interest under the t~amfer,or
(iii) the preservation or maintenance of the property transferred ; and such
direction may be made accordingly.]
18. Transfer in perpetuity for benefit of public.-The restrictions in
sections 14, 16 and 17 shall not apply in the case of a transfer of property fof
the bendt of the public in the advancement of religion, knowledge, commerce,
health, safety or any other object benefioial to human or other living being.]
19. Vested interest.--Where, on a transfer of property, an interest therein
is created in favour of a person without speclfling the time when it is to take
effect. or in terms spectfying that it is to take effect forthwith or on the
happening of an event which must happen, such interest is vested, unless a
contrary intention appears from the terms,of the transfer.
A vestedsinterestis nit defeated by the death of the transferee before he
obtains possession.
Explanation.-An intention that an interest shall not be vested is not to be
inferred merely from a provision whereby the enjoyment thereof is postponed, ' I
I
or whereby a priqr interest in the same property is given or reserved to some
other person, or whereby income arising from the property is directed to be
accurnuiated until the time of enjoyment arrives, or from a provision that if
a particular event shall happen the interest shall pass to another person.
20. When unborn person acquires vested interest on transfer for his
benefit.--Where, on a transfer of property, an interest therein is created for the
,

1
I

,benefitof a person not then living, he acquires upon his birth, unless a ~~
intention appears from the terms of the transfer, a vested interest, altbugh he
may not be entitled to the enjoyment thereof irnrnedbtely on his birth.
I 21. Corttingenr intern&.--Where, on a transfer &- property, an interest
therein is created in favour of a person to take effeet only on the happening
' of a specified uncertain event, or if a specified uncertain event shaH not happen,
such person thereby acquires a contingent interest in the property. Such
 I
310 THE 1 KANSFZZo UP PROPERTY ACT,
I
1 !
intmq becomC1; a vested irrtcxest, in the form r case, on
of the went, in the latter, when the happen ng of the
impossible

Exception.-WIrere. under a transfer

happening
nt becomes

to an interest therein upon attaining a

gives to him absolutely the income to arise
that age, or directs the income or so
applied for his benefit, such interest i

22. Tran@r to member of s class who atioir/ o particular

on a transfer of property, an interest therein
members only of a class as shall atthin a
vest in any member of the class who

i
23.Transfer contingent iwt h a p n i n g of s cljied uncert in event.--
Where, on a transfer of property, an interest there' is to accrue t a specified
pomm if a -ed uncertain evtnt Wl happen and no time i mentioned
for the occufiencc of that event, the interest fails unless such ey nt happens
w o n , or at the sane time, as the intermediate r precedent in rest ceases

24. Transfer to sad i of certain person

spec@ed.--Where, on a transfer of pmperty,
such of certain pemns as shall be surviving
is not specified, the interest shall go such
intermediate or precedent intern ceases
appears from the terms of the transfer. !
I
Illustration. II
A transfers property to B fox life, and atkr
to be divided between them, or to the swvivor
of B. D survives B. At B's death the

25. Conditional transfer.--An interest created

dependent upon a condition fails if the
hposable, or is forbidden by law, or is of
it would d e b t the provisions of any law, or is
injury to the person or property of another, o
or opposed to public policy.

(a)
an h.
The 1tarrc.k w6d
I
cb) A g i W Ra 300 to B on mdition t
C. At the date d the transfer C was dead.
 THE TUYSFEW OF PROPERTY ACT, 1977 (1920 AD-) 311

(c) A transfer Rs. 500 to B on condition that she shall murder C. The
transfer is void.

pr-
(d) A transfers Rs. 500 to his niece C if she will desert her,husband. The
transfer is void. \

26. ,'FulJiment qf condition precedent.--Where the terms of a .transfer of

impose a condition to be fulfilled before a person can take an interest
I
in the property, the condition shall 6 deemed to have been fulfilled if it has
heen substantially complied with.

I Illustrations.
I
(a) f\A transfers Rs.5,000 to B on condition that he shall marry with the
consent of C,D and E. E dies. B marries with the consent of C and D. B is
deemed to have fulfilled the conditions.

(b) A transfms Rs. 5,000 to B on condition that he shall many with t l

consent of C, D and E. B marries without the ionsent of C, D and E, but obtains
their consent after the marriage. B has not fulfill& the condition,

27. Conditional transfer to one pemn coupled with trans&r to atibther

on failure of prior disposition.--Where, on a tr&nsferof pro&, an iterest
therein is created in favour of one person, and by the same transaction an
ulterior disposition of the same interat is made in favour of another, if the
prior dispasition under the transfer shall fail, the ulterior disposition shall take
effect trpm the failure of the prior disposition, although the failure may n8t
have occurred in the manner contemp1ated by the transfer.
'
But, where the intention of the parties to the transaction is that the ulterior
disposition shall take effect only in the event of the prior disposition failing
in a particular manner, the ulterior disposition shall not take effect unless the
prior disposition Mls in that manner. *

(a) ~'t&ers Rs. 500 to B on condith that b shall execute a certain

law. within thnx months after A's death, WKI,if he should neglect to do sb,
to C, B dies in A's. life-time: The dispositictn in favour of C takeg &@t.
I
(b) A transfers proprty to his wife ;bnt, in case she shouid die in his life-
time, transfers to B that which he had Q-6ns&necIto her. A and his wife perish
tagether u~idercircumsWms which make k impcrssibk to prow that shc died
befbre him. The disposition in favour of B d m nat take effect.

28. U&menor trartsfer conditional ap happening pr not happening of

spec@& event.--On a transfer of prepay an interest thekin may be created

/'
 312 THE T R , ! .-.ALRSOF YSPERTY
to accrue to any person with the
specified uncertain event shall
person, or that in case a
interest shall pass to
subject to the rules
29. Fulj2lment of condition subsequent.
contemplated by the last preceding
condition is strictly fulfilled.
.Illustration.
A transfers Rs. 500 to B, to be paid to 1

or marrying, with a proviso that, if B

I consent, the Rs.500 shall go to D. B
C's consent. The transfer to D takes effect.
30. Prior disposition not aflected by
the ulterior disposition is not valid, the
Illustration.
A transfers a farm to B for her life, and if
to C. 'B is entitled to the farm during her
inserted.
31. Condition that transfer shall cease
uncertain event happens or does not

1 1
section 12, on a transfer of property
the condition superadded that it
uncertain even shall happen, or
happen.
Iliustrations.
(a) A transfers a farm to B for his life, with proviso that i case B cuts
down a certain wpod, the transfer shall cease to ve any effect. B cuts down
the wood. He loses his life interest in the farm
(b) A transfers a fm to B, provided
within three years after the date of the tra
cease. B does not go to England within
the farm ceases.
32. Such conditions must not bp! in
interest shall cease to exist may be valid, it is
it relates be one which could legally
of an interest.
33. Transfer conditional on performance
for performance.--Where, on a transfer of
 THE TRANSFERS OF PROPERTY ACT, I977 (1920 A. ~ . j 3fi

I
created subject to a condition that the pemn takiw it shall perfom a certain
act, but no time is specified for the perfsrman~eof the act, the condition k
broken when he renders impossible, permently or fot an indefinite period,
the performance of the act.

34. Tramfer conditional on per$omance of act, time being speciJied.-

Where an act is to be perfanned by a perm either as a condition to be fnMhiled
before an interest created on a transfer of property is enjoyed by him, or as
a condition on the non-fulfilment of which the interest ks to pass from him
to %nother person, and a time is specified for the performapx of the act, if
such performance within the specified time is prevented by the h u d ofa person
who would be directly benefited by non-fulfilment of the condition, such further
time shall as against him be allowed for performing the act as slgll be requisite
to makt up for the delay caused by such Eraud. But if no time is spedilled for
the performance of the act, then, if its performance is by the fraud of a person
interested in the non-fblfilrnent of the condition rendered impa&bSe or
indefinitely postponed, the coqbtion shall as against him be deemed to have
been Mlkd.

Election. '
\

35. Election when necessary.-When: a persawprofis to transkr ps@m%y

which he has no right to transfer, and as part of the same transmion oonPLrs
any benefit on the owner of the property, such awner must elect either to
confirm such transfer or to dissent from it ;and in the latter mse he shall
relinquish the benefit so conferred, and the &edit sd relinquished &all revert
to the transferor or his representative as if it had not been dispdstd Crf,

I subject nevertheless,

where the €ransfkr is gratuitous, and the tnuasf;etlr has, befoPe Welectim,
died or. otheMse become incapable of making a h s h trader,

and in all cases where the transkr consideration,

to the charge of making good to the dislrppointctd transferee the anmitt &S
-,

I
value of the property attempted to be transferred to him.

illustration, \

The fa,m of Sultanpur is the property d C and worth RS. 800.A by an

instrument of gift professes to transfer it to B, gibing 'by the same insVumEnt
Rs. 1,000 to C. C elects to retain the farm. He forkits the g& of-Rs. 1,000.

Inthewnease,Adiegbefmthe . Wis
of the Rs. 1,000 WVRs.800 t6 B,

.
' A"
E
314 THE TRANSFERS OF PROFERTY ACT, I97

The nhe in the first paragraph of ?his section app

does or does not believe thst which k professes
A person taking no benefit directly under a t
benefit uniier it indirectly, need not eiect.

I in anotheq dissent therefrom.

Exception to the last preceding
. f
A person who in his own capacity.takes a benefit un er the transadii n may
P
i
expressed to be confhed on the
professes to transfer, and such
if such owner claim the
he is not bound to
transaction.

i
Such knowledge or waiver shall, in the absence of ev dence to the cofitrary,
be p r e s d , if the person on wham the benefit has been conferred has ebjoyed
it for two years without doing any act to express dis nt. I

Such knowledge or waiver may be i n f W from act of his !which

renders it impossible to place the persons interested in property ~dfessed
to be transferred in the same condition as if such act
Illustration. I

A transfers to 8 an estate to which C is entitled,

transaction gives C a coal-mine. C takes passession
it. He has thereby

In case of disabili& the election shall bc

ceases, or until the election is made by some

I Appdrtionment. 1
I
 ACT, 1977 (1920 AD.)
THE TWWBFERS OF IYROF&RTY 315'

other ptiKldicai payments in the

all rcats, d t i e s , pensions, & v i m ' -
siaall,upaa*tmaftheiftttrestofthe~nfntitkd
to roaeivt such payments, be dtsmed, as betwixt the
tianeferee, to due &om day ta day, anb to be qqmthnable accordiagy,
bus tobe on thc dtys a p p W fbr Ihe pa-t thcnof.
37. Appointmenf of benefit 'of obtigation on sewwnce.--When, in

of any &fig- dating ta

; but if tlve duly

-tkcburdcR
oftheoMig&tian,t h e d n t y s k a I l b e g e m w & W f i t sfstichuneof
the several owners as they shall jointly &signate ka that pwpme :

ProviM that na pemn on whom the burden dt the obligation lies sMl bt
~ e f o r f a i l m t o d ~ i t i n ~ p t o v i d e d b y ~ s
unlm ead he has had reasonaMe notice of the sfwe-.

(a) A sells to B, C and D a house situate in a village and leased to E at

rtiiaaal af Rs.30 .&dekry of fat m1 B having PCW&XI Bsif
ttrcmfrasemoneydCandDoncqheaclt.~,haviagM~edthis,
15 to B,Rs. 7%to C and Rs. 7% to delivestlie
thejoint r l i r a t h ' o f ~ c
, and 13.

dayo'labowcact.lyearoaa~topnvglniaanda&m,E
dMs lcase teperhxathis work for A. B, G: and D,
pcrbm the ten day's work due on account of the house &each. E is wot bQIMd
to do more than ten day's work in all, according to such direct- as B, C , -
and D may join in giving.

by perso# m C d only mtkr certtain cf

=3+pctsoli,~-aaZY=-

1. s b b d w a l ~ p . k i t M o C Z O Q I l o r " ~ ~ .
316 THE TRANSFERS OF PROPERTY ACT, 1977

nature variable to dispose of immovable p r o p

consideration, alleging the existence of suoh
between the transferee on the one part and the
any) e t e d by the transfer on the other part
the transferee, after using reasonable care to
circumstances, has acted in good faith.
Illustration.
A, a Hindu widgw, whose husbitnd has lefi col
the property held by her as such is insufficient
for purposes neither religious nor charitable,
property, to B. B satisfies himself by reasonab
the property is insuff~ientfor A's maintenance
is necessary, and, acting in good faith, buys.
on the one part and A and the csUateral hei
for the sale shall be deemed to have eiisted.
39. Transfer where third person is entitled
person has a right to receive maintenance, or
marriage, from the profits of immoveable property
'[x x x x 1, the right may be enforced against
'[them4 or if the tfansfer is gratuitous ;but not agai
ation and without notice of the right, nor against such

-- re,
40. Burden of obligation imposing restriction on u e of land.

C for
the more beneficial enjoyment of his own immweable roperty, a thirdiperson
has, independently of any interest in the immovable roperty of andther or
or of obligation annexed to
ownership but not amounting
lo interest or easement.
arising out of contract and annexed to the ownership
but not amounting to an interest therein or
obligation may be enforced against a
gratuitous transkree of the property
transferee for consideration and without
against such property in his hands.
Illustration.
I
I
A contracts to sell Sultanpur to B. While the cobran is still ih force
he sells Sultanpur to C, vtrbo has no& of q e contras. B may enfo ce the
contract against C to the same extent as against A.
1. In section 39 words "with the intantion of defeating such right" onitted and for the
f
such intention" ttte ward "thefeof" swbstitutetl and itlusttation t m M by Act VT
2. In sedion 40 words in brackets substituted for the w o e "of the laser property 01:
its enjoyment in particular manner" by Act VI of 1396,
--

THE TRANSFERS O!: I'ROPEBTY ACT, I977 (1920 A.D.) 31 7 .

I

41. 7'ran.fer by c2.stenstble ow~e~".--bVhcre. with the coiMW< aptcSS or

implicd. of fhc persons interested tn imnloveablc property. a a m is the
..ostensibbowner of .such property arsd transfen the same for considt%%h~, thc
transfer shall not bc voidable on the grout& that the. transfcror was not
allPhoriscd to make : provided that the transfcfce. after raking reasonable care
to ascertain that the transferor, had powver to make the transfer. has mted in
good faith.

42. 'Transjeerby persan hming authnrry b rc.voke.+rmr transfer.--Where

a p e m transfkrs arry tmmovcabb property, rtsming poww to j'ew&xxdthe
transfer, and subsequcntly transfers the property for considerallon to atrolhCf
transfer&, such transfer opetatcs in fmwr of sucll lransfertx (subject to any
condition alrxhcd to thc csercise of tie p a w ) as a revocation OF tb former
transfer to the estent of the power.

111flstratrart,

. A lets a house to B, and reserves power to reudrc the lease iE, L the
opinion crE a specified swaj?or, I3 sksuta) make a use of 1 rklrimmlai to its
value. AAerwards A, thinking that mch a use has been made, fets-the
house to C. This operates;% a revawtition of 3's leas& subject to the opinion
of the surveyor as to B's use of the house havit~gbeen detrimental to its
vdue.

43. Trans* by unaulharised persdin who subsequentfy acquires interest

iff, properly trnn.$crred.--Where a perm '[fraudulently or] erroneously
i%&e&ts that he is allthorised to &a&& certa'in lm-le property and
professes ta transfer such pmpedt'y W mi%id6mio~, such tnwfer shall,
at 'the laption of the transferee, operate on any - i n t @ ~which
t t k transWw
may acquire in such f~mpertyat any -time during which tb contnwt of
"mnsfersaws&. ,

Nothing in this section shall impair the right of transferees in good faith
for consideration without notice of the existence of the said option.
" I

~I~ustration.

A, a H&U, who ha$ separated from hir &hert B, sells to E three f$&,
X, Y and Z, representing that A is aat;hori+ ia transfer the mm?, Of these
fields Z dws not bel~ngto A, it having been retained by B on the
partition ;but on 0's dying A.as heir pbtains 2. C, not haying rescinded the :
e o n m of sale, may require A to defiver Z to him. 'I

4
- I #<-=&
 such property or any interest therein, the tra

traRsfmrYsright to joint posses

property, and to enforce a parti
and liabilities afl%cting,at the
tra&H. r 1

undivided family is not

be deemed to entitle him.
of the house.

is paid out of a fund belonging to them i

of a contract to the contrary, mpectivdly
'
entitled in the fund ;and, where such consideratio
belonging to them respectively, they are, in the
contrary respectively entitled to interests in such p
shares'of the consideration which they respectively
I

In the absence of evidence as to ti= interests

were respectively entitled, or as to the shares whi
such persons shall be presumed to be equally
46. Transfer for consideratian by persons h
Where-inmoveableproperty is t&erred for
distinct interests therein, the transfemrs are,
the contrary, entitle4 to share in the consi
in the property were of equal value, and, w
value, proportionately to the value of-i
illustations.

(a) A, oivning a moiety, and B and C qsh a

Sultanpur, exchange an eighth share of that mauza
4
share, m r m ~
share Of mauza
Lalpnra. There being no agreement to the
,

(b) A, being entitled to s life-interest

reversion, sell the m a w for Rs. 1,000.
worth Rs. 600, the revision Rs. 400. A i
the purchase money, B and C to receive
 THE TRANSFERS OF PROPERTY .ACT, 1977 (1920 AD.) 319

tt the t m & r is to take e4ect on any pmtiah share or sharcsefthe

b
tmsfkrm, the transfer, as among such tmderorq takrs tffcct on such
equally where the shares were equal, and whcre they were -1,
proportionately to the extent of such shanes.

Illustration.

A, the owner of an eight-anna share, and B ;md C, each the owner of a four-
anna share, in mauza Suitanpur*transfer a two %NUshare ia the rnauza
D, without specwng from which of their several shares the transfa is
Togive&ect to thetransfione annashareistakenfromtkshim!ofA,aad
Balfmannasharr:fromeachofthesharesofBaatlC.

4%. Priority of rights created by transfer.-When a perm paqmFts to

create by transfer at different times rights il;z or aver the same immoyeaible
p ~ ~ , a n d s u c h r i g h cannotallexi&orbe(:cisedtotheir~~nt
ts
tog4mI each later created right sBatk in the &sen& of a special a m t ~ a a
or
resexvation binding the earlier &ansfma, be subject to the r i m pravimly
treated. I

49. Transjieree's right sm&r p o l i c y . - - W e iamweabIc property is

rrassfened for ansideration, and sach p w r t y or any part thaw# is at the
date of the transfer insured against lass or damage by fire, the tam&w, in
case of such loss or damag,e, may, in the thence of a wntract to the contrary,
require any money which thg W e r o r W l y receives undei the policy, or
so much therebf9s may be Ilscessary, to be applied in reinstating the property.
50. Rent bona fide pai-d to bolder fkder'ilefictiuc title.--No person sW1
be chargeable with any rents of profits of.any immoveabk property, which he
has in good faith paid or delivered to rrny person of whom he in good Lilh
held such property, notwithstanding t m y aftexwards appear that the person
to whom such payment or delivery was zi&e ha$ no right to teceive such rents
or profits.

A letsafsld to B a t a r e n t o f q . 50, a a d ~ ~ r s t h e f k ~ d t o C .
B, havingno notioeofthetm&er, in~3frsi@polysthereht~II,Bisac#
chargeable with the rent so paid.

" 51. Improvementsd e by b n a N e holders under defective titls~.~When

the transferee of immveable property k any impiovement on the pmpaQ,
believing in good faith that he is %bsofutefp cnWed thereto, anb he is
subseqw&tly evicted therefran by any person W n g . a bet* -ti&% the
tm-&emhas a right to muin tht penrsal cawing t ! @ H L O n
Wvdueoftheimpr-t-amfpaidlotMWW
carry them.

as it may impose.

any law for the time being in force.]

faith and for consideration.

53 subetiQlted by Act VI of 19%.

 I - * 4 1:T-I"
.a,* *ii
d ,

THE TRANSFERS OF PROPEBTY m,1977~ 1 AD.)

9 ~ - 32rp *
I

of the tmndkror, shall k institufed on khalf &t or fiot tiy of,&* ,'
mditors. e

(2) Every &m&s of -i priqmly made witbat

with intmt to defraud a sut- transferee dud1 be voids€&?@tthe ~ O L !
of mci~transferee.
,Forthe ~UIPWSof this sdwfcti~n,no tmmfkr * .

* c

mmar,
Of Mes of IrnaMYesMe PnqnWy
54. "Sale" is t ~~ of awrrership in
--"'We" Tor
a priw paid or ar *.paid and part~rnmkd.
Slmch transfer, in the case of ptgiBle i m b w b k properly pr i
w how mcds €%&her
barade~~~iytgra . -
~ k f o r t k d e o f W ~ a , k ~ ~ i w a e t t h a t a u *
propeaty shall take p W on terms
Contract for sale betwetn tbc parties, but no such witmct
, .
small be valid, unless it is in writing and &@led by the p@t%~.-
n aaa'mt, d i ~ create
, my iehrn &.or rat.ssclt".

'(1) The s e M ~is t ~ m d - I I _

(a) ' to diaiciose acr the buyer any d *@*
selkr's title €her&o] af which the seller iq'aal the i rs mt rmrPlatq 48d * * "

wbicb the buyer maid hot with ordinary carr: f t B W k

*) €optoduEetah-bqwora.

(a !oanswwto@ebaotafhhl
him by tkc Iapr in ircspeot 40 tbe
(d) on paytliMnt sr tcndsr Bf t
B
p-xemt~aplop&wmyamoftbe
- #

1.
*'

hauaiaa55(i){.fwa.dlin~~&kdvraFi*
. , ' ,
' .-
\.
*st
.;.yl' 9.* 'I
_'

-
-.-
J
".J* 2 3 4 ' :A * - C - + ; .,
. ...* -
I /

r b : -,g&&at;+&*
1

A "
 (0to give, on being
such possession of the p

up to the date d the

due on such Bate,
,-i to di

totransferthesame:

he shall be daermd to contr

wh=&*~m-Yb
-rt ip.

I
 . 3 '

&WiNtPERS 01' PILOPERTY ACT, 1977 i f 940 AD.) 3l3

(5) ltlle buyer is bound-

-
(cr) a O d i s G i ~ ~ ~ t o t b e s c l l c r a n y f a c ~ a ~ t o t h c n t l ~ o r ~ d
in~i~tbs:prapertyofwhichthe~etisawarebrrtofMh
to b t l k that the seller is ~ oaware,
t a d ww metmally humam t8a value
daRIcbintawt;

\ -
-,*-
oftfi6mww .
ngt'caosaa by the seller ;
_I *
(a w l a m t h b o w n e r s h i p o f t h e ~ h a s p a s s e d t o & ~ , a s ~
~ a n d ~ s c I ltopay~dIpubr%c~charpaad~whkhl;oaybaaoare
a ,
wbicbtbs:property

(6) 'n;r~:bayer L &$Id-- i . a.-

- .g
2

afthtpropercy~
in, or ~arreasei n d u e 6
 I
I
324 THE TRANSFERS OF PROPE8TY ACT, 1

An mission to make such disclosures as

parafpraph (I), clause (a), and paragraph (S),
'(56. Marslialling by subsequent purchase;.-
$roperties mortgages them to one person aild
projmties to &other person, the buyer is, in
contrary, entitled to have the mortgageddebt
properties not sold to him, so far as tfLe
prejudice the rights of the mortgagee or pe
other person wha has for consideration
p-4 I

Discharge of Incumbrances o
57. ~rovisidnby Court for incumbrances
Where immoveabie property subject
payable or not, is sold by the Court or in
the Court may, if it thinks fit, on the
or allow payment into Court,--

(I) in case of an annual or

capital sum charged on a
as, when invested in
Conit considers Will
or otherwise
(2) in any other case of a capital sum
amount &cient to meet the incumbrance
But in either case there shall
as the Court considers
costs, expenses and interesj.
of investments, not exceedrng o
in, unless the Court for
require a larger additional amunt
(b) Thereupon the Court may, if it thi
incumbrancer, unless the Court, for reasons to be
fit to dispense with such notice, declare the
incumbrance, and w k e any order for wnvey
giving effect to the sale, and give directions
of the money iii Court.
 -

THE TRANSFERS OF PROPERW .ACTI 1977 (LOTO AD.) 32s

give directions respecting the applica'ti* or disttibution d the capital or

&me thereof.

(;i) An appeal shall lie from an$ decllaration, order or dir;cti6a gukr Ws
seahi as if the same were a decree.

(o) ~n t ~ seekon
s a m EI~@ ~ ~ iii w t
" ~ o l u t ~ ~ e(I)* of
exuaordinary original civil jurisdiction, (2) ttte Cottrt of% Didrict Judp Bvittdn
tbc local linlits of whose jurisdiction thcprapWty or any part tkoreob'ls&@ate,
(3) any otfwri Court which '[the Go1- mayy f m U b m to time by
notification in the Jammu and Kashmir Government Gazette, &lan tq be
competent to exercise the jurisdiction c o d e by this d o n .

c-w
Or ,Martgaps of IinimweIble Property 'md=~harger
-
(r
58. "Mortgage * : "nrortg&orl : "rnovtgagee" "mortgage-modey" and
'

"mortguge-deed" deJned.-(a) A mcrrtg3ge is the t d e r .of an interest

in specific immoveable property for the purpose -bf sapring the pay- of
dmney advan& or to be advmced by way of loan, an existingot lithue
'c3lebt,w~~rmaaceofanengagem~Dt~hm;aygiveliscEoa~ry
lirstrility. ,

; the.
w* *
I[* *] by which the &ax&&

(c) Adwtgage by conditional sale.-Where the mortgagor ostensibly sells

mowgad m w -
m cadtion that on default,of paymat d r n o l y g e ~ &oe a a& date
' *sote~becomea~,Or,

,
-. *
I .rr
" ' *>.,%> L d ,*w=, %k4*2..
 onoondit;onthatansuch~nt~
void, or

p r o m to the seller,

'[Brmided that no such transdon shall be

tBe sale.]
(d) U-cruary mcptgage.-Where the mo
expressly or by implidon binds himself
mortgaged property to tbe mortgagee, and
possession until pigment of the mortga
. profits accnring fro- tile propmy *[or rury part
to appnprbte the sartuz] in lieu d interest, or
money, or partly in lieu of.interest l[br] pattly
=mv*the- nisCgnbdaudmtwy
a-u -em.

a miditor or tais a s n t documents oftitle bo

the titie-deeds.

i n
I 328 THE TRANSFERS OF PROPERTY

(2) Tbe rights d e m d by this section

the mortgagor or by any -ne
mcumlwamx ;but the requisiloion of any
requisition of tne mortgagor and, as
requisition of a prior d~cudmmxrsBail
t2Imdmmf.
IL

(3) T h e p p o v i s i ~ d ~ ~ n d a
'nthoisorhrrobeenin I

inEheabsenceof

together.

(a) where tbe mortgagee is

 I

- \

~ s TeR A M ~ ROF ilbn(1-

S PBOPEB~Y.A&, AD)

. ~sucfr~hashrenaogn~irithdc~~ofthi
and-Ts capable of separate possession or orjoymknt without
totaketlreaccessi

Acocsrim ai&red in virtue

@f kwr+red ownership

1 . 1 rnentionbffho p' m ~ a ;my, &sing&%%thc & ~ x & s ~s bI t i

in the case
be credited to the mortgagor.
I _

is f i at ihe mtce d nine gcr ctnt.#pertr

by &ason of the improvement shall be

65, Implied emtracts by theabsenceofa

a w w , the ~ & s l W 3 M l Conmet rvi* tlfe

+* ".irk&&*
.:%&p r& -ii ,
i
. " "& ', :,s*d&$ga
 330 THE TRANSFERS OF

(h) that the mortgagor will defend,

of* Grtgaged praperty, en- him to
a . (C) w the mortgagor win,
of the -gaged iwopercu, pay
the property ;

ptoperly, that the mortgagor will pay the i

due on each prior incumbrance as and when it
proper time discharge the principal molaey due
'EXXI
.Thebenefit of the contraas m e w in
8ad shall go with the interest of the mortgagee
bymrypersoninw~mthatinterestisforthe
time to time vested.
'[65-A. Mortgagor a' power to lease.--(
section (2), a morQagor, wwki lewdidly
propay, shail have jio- 10 to ha
the tllotgage.
(2) (a) Emry'srtsh lease rysim4bc
, eourse of msnagement of t
k pqlety
local law, custom or w e .
@) EW &h lesx shall reserve t* best ng1tbat a n be
&tained, and no premium SWbe paid-or promimi and no be
payable in advance. i
(c) No such lease shall contain a covemat for
(dl ~ v e r y s u e k k . r c ~ ~ s l l t a k & ~ o l a d a t e
iiwn the cQte on whidt it is made.
In the case ofa leareof bui

d
 i
(d) to authoris a person interested in part ly of the
a suit relating only to a correspondi g part of
. to 'institute

-
property, unless the mortgagees have, with the nsent of
severed their interns under the mortgage:

'167-A. Mortgagee when bound to brin

mtgag@.-- A mortgagee who holds two or more
*
same mortgagor in of each of which he has
kind of decree undlor saction 67, and who sues
one of the mortgages, shall, in the
bound to sue on ail the mortgages in respect
become due.

68. Right to SUP for mortgage-money.

sue for &hemortgttge-msney in the BlLowiq

(a) where the mortgagor binds himself to.

(b) where, by any caw other than the
mortgagor or mortgagee, the
dWmyed or the security is rendered insuffi
66, and the mortgagee has given the mmtgago
providing b t h c r security enough to render the
the mortgagor has failed to do so;

(c) where the mortgagee is depriwd of

by or in consequence of the wrongfui act

(d) where, the mortgagee being

property, the mortgagor .fails to deliver the
possession thereof to him without di-
, daiming under a title superior to that of the mort
Provided that, in thc case ref- to in
mortgagor or from his legal representative
the mortgage-money.

(2) Where a suit is brought under chase

(I), the Court may, at its discretion, stay the
notwithstanding any contract to the contrary,until
d l his available remedies against the mortgaged
sbaRdons his d 4 y
1,
accession is made to the mortgaged propa@,the maatpgee, in the absatw
s the security, be entitiad
of a c o n O r ~ t othe cantraly, shall, for the p ~ p o s e of

beestitiedtothcnew~.

72, Rights of mortgagee in p o ~ o n . - J [ A

moay asis neoessary-

*wwidedthat the exepe&tule of money by the

 I
334 TRANSFERS OF mOPBRN *CT. 1m(ma
A
;
) /
hasbacn&duponludhas~cdtotakePmper
the @operty or fo support the tide.] =

Where the praperty is by its nature in

the absence of a contract to the contrary,
or damage by fire the whole or any part of such p
paid for any such insw~dnceshall be '[added to
interest-at the saw rate as is payable on the pfi
such rate ig fixed, at the rate of nine perceat.
of such insnranoe shall not exceed-the amaunt
nmtgage d d or (if no such amount is
amant' that w d d be required in case of total
pr- insured.
Nothing in this section shall b deemed to authorise
when an ins- of the property is kept up by or
to the amount in which the mortgagee is hereby

2[73. Right to pro

acguisitiort.-- (1) Where the mort
i a t e n e s t ~ i o ~ ~ w i ~ t o
charges of a public nature or rent due in
failure did not arise from
be entitled to claim
of any swplus of the sate
of all charges and deductions dkcted by law.

.thtrein is acquired usher the

for the time Wing in force

in wble or in part, out of the

I 336 THE TRANSFERS OF

account for his I[***] receipts for the mo

teqder or from the earliest time
as the case may be, '[and shall
on accrultlt d any expenses irm
the mortgaged ~ropetryl.
if the mortgagee ails to perform any of the duties imposed upon
Loss occasioned by his default.
are taken in pursuance of a decree
the lass, if any, occasioned by such failurz.
I
77. Receipts in lieu of interest.--
(g) and @), applies to c;dses w h e ~
there is
and the m g o r that the receipt from thI:
as the mort& is in~pomssion
on the principal money, or in lieu of sufh interest a
principal.

78. Postponement of prioer mortgagee.--Where

rnisrep&ntati~n or gross neglect of a priaer
been induced to advance money on the security
ptior mortgagee shall be postponed to the subsequent ortpgee. .
79. Mortgage to se
expressed.--If a mortgage made to secure future
an engagement or the
to he seaired thereby, a
made with mtice of the
in respect of& advame ot.
or allad with notice o f t
IiJustration.

lO,ooa, to priority over (2.

80. l[Omined.]
 ..
.
THE T R A N SOF
~ PROPERTY
S ACT, 1877 (1920 AD.) . 337

Mar&alling and Contribution.

'[sl. Mwshalltng seca;-fries.-If the owner of two or more properties

mortgages them to one person and then ertgages one or molk of tbe
propertb to another person, the subsequent mortgagee is, in the lBsellcc af
a contract to the contrary, entitled to W e the prior montgageckbt saWkd I

atrt of t
b property or properties to him so, far as the same will
atend, but Rot so as tb prejudice the prior mortgagee or of say
other pemn who has for cowMeration aapind an interest in any of the
e e l .
82. ConPibution to mor$age-debt.--2[Where prcperry subject to a mort-
gage belaags b two or inore person having distinct atldt separate rights of
tlrort-in, the Qiirerentshams ln or pmts of such property owned tw
ns are, in the abseffcs of a mntract to the C O ~ tiaMcr
, to eantrits,, Lr.

rateably to the debt sewed by the

dderrnining the rate at which em% such
themf shall Be deemded to be its wlue at the
deduction of the mount &any other mortgage or c- to which it may haw:
been subject on that date.]
Where, of two properties belonging .to tkc same owner, one is mortgaged
t o s e C U r e q n e d r ? b l a a j d t h e n b d h a r e m ~ ~ g I x t t o s e c u r t ~ r ~, ~
the formerrdebt is paid out of the former proqrty, each pmpa%yis, iti thie
absence of a contract to the contrary, liabie to oontrihte-r8tcabla to ths:lragter ,
debt after dedudng the amount of the former debt from &hevalue of the. .
property out of which it has been paid. \

bhbing in this W o n applies to a property liable udder sectioa 81 to the

claim of the a[su?mzq~ent]mortgagee.
Depo9it in C o k .
I
. 83. Power to deposit in Court m p r y h e @&1 ~ ~ l t p g e . - - A
myf time dler '
the pd- rnsney f@9ble in respect ofany mortgage become &ti] and
B E h a suit Bor mdanptimof the mortgaged p;laperty is baned, thc f

or aay otter person entitled to institute such*mit,may dqm&, 'indhy 4 % ~

in whieh he might have instituted such suit, to the theaccwM the mortgagee,
the a m m t remaining due on the mortgage.
The Court shall thereypon cause waitten notice of the &posit tb be: mved
on the mortgaiet, mi the mortgagee m y , on pmehtmg a petition (veded
ip,maoaer f#mwxi'badby law for the veriffcation ofplai~ts.stating &a t~easnonnt
1. sectionOlabrtiadodby~Vrofl996.
2. ~82pngcaphwlthvlbadod~~bsS'isRdintt\ird~wd"
+*'' by^ Ad Vt of 19%.
3. W a d m bndrets aihWubd for" has bcoome peyable" by Ad M of 1986. .
 l

I 338 THE W S P E R S OF PROPERTY

tben due on the mortgage, and

Right to moorey deposited by
wgagor
or power relating to the
and the mortgage-deed
delivered to the mortgagor or such other

Where the mortgagee is in passessio

ohall, M o m paying to him the amount
possemion thereof to the mortgagor and
re-tmsfer the mortgaged propcay to the
as the mortgagor may direct or to ex'mtt
effected by a registutd instru*t) haye
writing thas any right in derogation of the
the mortgagee has been oxtinguishod.]

84. Cessation of interest.--Wh

aforesaid has tendered or deposited in Cou
lllEmaining d u on the mortgage, interest on
&om the date of the tender or '[in the case
knder of such amount has been made] as soon
person as &resaid has done all that has to
mortgqee to take such smount out
ssctioa 83 has been served on the mort

I
Rpvidnd that, where the mortgagor has
hrrviag made a previoy tender thereof and quently 'withdrawn the
, sam or any part thereof, interest on the pri shll t+ psylbk frem
tbc date of &h withdrawal].

' mortgage of his right

b eatitlad to rcosonable
8s t8c case lpay be].

85 to 90. Omitted.

7. Words in Met d d by Ad W of 1996.

 r

THE TRIUlrSFERs 00 PROPERTY ACT, a 9 7 7 OPro lux) 339

6 RedempHon.
[93. Par- who may sue for re ad
am
, mamely :-

pars~l(other tfisul the

wbo has any i n t e a in,
or in or upon the right to redeem the same ;
@) any surety for the payment of the mortgage debt ar m y W
thereof: ot

(e) anynaditor&theniortl4agorlvb6hitsina*t&
ofh6~obtaheda~f~saltofthe~ga-l

=E92. Subrogatii0n.-Any of the person r c f d to in ststh 91 (wtlroo

aq+%+mort@gor shall, on dcemiag m r t y rubjdct tn
the imtgagq have, so f& as regards ndemption, rsakofarch
jmg%rty,the~atncrightsasthemort~whose m n r s ~
. ,laam the mortgagor or tiny o* mmgaga,

csUod$It~*d Mb
be sdm@&d to.& '* . "

A penma who bas advanced to o mortgagor m ow with which tbc IIKHtsrype.

redaamed rights of
hasbGea
tiitit such persons shall be so subrogatfd.
I

~g~WsSectiOnshallbe tocotdbrarigMaS at
m y ~ ~ ~ U I C m r t p ; a p i n ~ o l p ~ ~ ~ f h ~ d ~ i l c I .
infu full.]
 1I 1

I
THE TRAFISFl?F& OF PROPERTY ACT, 1977 (1920 AD.) ;

'IN. Rights of mes& mortgagee.--

for successive debts to successive mo
a p m w i, mortgaged
a m~ wrtgagw has
1
the same rights against mortgagees paste imself as he again? the
rnoztgagor.] I
'195. Right cf redeeming co-mortgagor to
several mortgagois redeems the mortgag:d
right of subro&auonunder section 92 agal
add to the mortgage-money recoverable
expenses, properly incurred in such redem
in the property.
96. Omitted. I I I
97. Omitted. I I
I
98. Rights and Nabiliaor of partiesto us mortgagees 1-ln he case
of 2[an anomalous mortgage], the right's of the pubes shall be
determined by their contract as and, so far
as such contract does not extend by local usage.
99. Omitted. I I
I

Charges. I 1
100. charges.--wheree iimmwme
parties or operation of lab made security
and the transaction does not amount to a mo
to have a charge on the property; and all
)[which apply to a simple mortgage
chatgel.
Nothing in this section applies to the charge of a
for expenses properly incurred in the exeucti
otherwise expressly provided by any law for the
shall be enforced against any property in the ha
property hag been transferred for considera
charge.]
[ l . No merger in case of
or person having a charge upon,

1. Seefootffoteundersedion92.
2. In d o h 98 words in brackets subslitutd for the words "a
 I
?
THE TRkVSFERS OF PROPERTY ACT, 19'77 (1920 AD.) 341

such mortgagee or chargeholder, may purchase ar dhembe acquin Pfie Mtb

in the property of the mortgagor or owner,as the
causing the mortgage or charge to be rqrged
subsequent mortgagee of, or person having a subsequent charge upon, tga:&me
property; and no such subsequent mortgagee ar charge-holder s W -be entitlJ
to fbrcclose or sell such property without mkming the prior a'
charge, or otherwise thaa subject thereto.]
Notice and Tender.

102. Service or tender on or to agent.-Where the penrotz on or to whom

aay &ce or tender is to be served or made undet.this Chapta docs wt reside:
in the district in wliich the mortgaged propeaty otsollne part t b s f i8 situate, ,
W c e or tender on or to an agent holding a general power of attfmwy from
such person or otherwise duly authorised to accept such service or tender shall
be detmed fuaeient.

'[Where no person or agent on whom such notice s W d be mvat ean be

8 , d or is kaown] to the person required to serve EIWnotice*the fattw.persan
may apply lo any hurt in khich a suit might be broqbt for redemptioa of
the inortgagdproperty, and such Court shall direct in what manner such notice
shall be saved, and any notice sewed in compliance with such dimtion shall
be daefnad sufiicicnt. :

2providedthat, in the case of a notice required by section 83, in the case

of a deposit, the application shall be made to @eGolM in which the d e m t
has been made.]

3m no person or agent to whom such tender should be made can be

'~foid or is known] to the person desiring to make the tender, Sht latter person
may deposit '[ia any Court in which a suit might be Lmkght for redemption ,
&the the amount saught to be ,-et and such deposit
shallI .
a tendef of such rundunt.

103. Notice, etc., to or by perm idopetent ts ~intr(#:t.--Wht, uRdCT

t h e p r ~ o f t h i s C h a p t e r , a n o t i c i e i s ; . ~ c b r : s e r v a d o r t o r b p , o z r/~
or or~tnoutofConrt
to bb served $[on of by]
accepted or taken, by the legal curator of the property
there is no such cutator, and it is requisite or desirable in the interests of such
person-that sGWcc shduld%e servtd' or & ten& or-depsit ma& .wader the
1. In rociop 102 womb in br;lcke(r oubdiMe for ths we& "Wkae tkc person or ~ g a r tat wkom
rrtr$aoacsrQwlbb~c.~&fcRadm~taid~orb~'by~Wdfl~.
a W e 8ndccrr~upmvLobyAnWaf1~.
r w‘I&LaedaUew- ~ ~ c r $ a a t ~ w h o a P u c h ~ ~ w
&lmd?aWnOthklr$~~kc& rirtt&?Um'&A8!'%%Of19%;
4. W < * e a ~ n r k r ~ f o r ~ d * % n ~ C o r P l t ~ l a s t I f d d ~ b y W f b l O F .
5. bwclimHJ3wdn"ara~hrealadQyActVIdi996. C

R
342 TRANSFER OF PROPERTY ACT, 1

provisions of this Chapter, application may be

suit might be bmght for the redemption of the
ad litem for the paqmes of serving or
making or accepting such tender, or maki
and for the performance of all cohqequaitial acts
done by sich person if he were cofnpet i

Order XXXU of tile Code of Civil P

to such application and to tbc partie
thereunder.
Q \ +

104: ' Power to rnnke rut&.--me

rules consistent with thb ." ' %r ca
Civil Judicature subject to ifc;superin
*chaptert
CHAPTER v. I i
i
I
Of Leases of Immovcablc Prop
105. Laase defntd--A lease of immweable pr
to enjoy sudr property, made for a certain time,
perpetuity, in consideration <rfq price paid or
of crops, m i c e or any other thiq of value, to
sj5eeifk.doccasions to the tmtderorby the tran
on such terms.

The tmtskror is called the lessor, the transferee is

Lessor, lessee, premium and price is called the
rent de/in&i share, service
rendered is called the rent.
 TRANSFER aF PROPERTY ACT, 1
9n(3950 k a)

W e m t y by a regisrered instrument.
All other lam of immoveable property m y be made either
i n s t r u m or by oral agreement accompanied by dcliwry d
Provided that '@wernmentj may, from tiale to tittie, by,notifkation in tho
Jammu a& Kskmir Govcrnlnent Gazette, direct that -1 d -i
ptcqrcrty, other than lases for any term a i d i n g 6rie year, and rmenhg a
@y m.exceeding rupees fiRy or any class of such leases,. may be made
by wrelgistert?d instrument or by oral agreement without delivery afposse&on.
I&. Rights d linbiliries oflessm and 1eme.--In the absence of a contract
or locat wage to the contrary, the lessor and kssee of irnntoPzabllt pmpcrty,
ar against ow ~trtotkr,tespeclively, posse& ehe rights and am subject to tohe
liabilities mentioned in the rules next following or such of them as an

(ti) The laror is bound to dische to the I- any mdn*l dpaQ in (hc
pmpty, with to its inte'ndeduse, of which the brmet is and the latter
is not mvrrre; and which the latter could not with ordinary atre discover ;
b bfarnd on the ia98eiS nquest'to put them in

the cantrads binding on the

limited by the last w h u t

fS) RIghts avrd ttsbilIties of the &ussea.'

344 TRANSFER OF

~ n d e r e dsubstantially and permanently

let, the lease shall, at the option of

i
Provided that, if the injury be occasioned by he wrongful
the lessee, he shall not be entitled to avail imself of the
provisions ;
I
(f) if the lessor neglects to make within a time a&r n,otice, any
repairs which he is b e n d to make, to the p lessee baymake the
same himself, and deduct the expens& of s wit11 interest from. the
rent, or otherwise recover it from the les I
1
I

(g) if the lessor nel ects to make any hc is 4 u n d to make,

and which, if not madit; by him, is recov
property, the lessee may make such paym
from the. rent, or othenvise recover i t
4
lessee r against the
deduct with interest
I

1:
(h) the lessee may '[even after the determi ion o i €he lea ] remove, at
any time 2[whilst he is in possession of the prope leased but n t afterwards]
all things which he has attached to the earth : pr vided he lea* th6 property
in the state in ivltich he received it ;

(i) when a lease of uncemin duration

default of the leusec, he or his lcgal
planted or sown by the lcssee and
determines, and lo free ingress

(j) the lessee may transfer absolutely or by

the whole or any part of his interest in the
interest or part may again transfer it.
such transfer, cease to be subject to
lease ; I

Nothing in this clause shall be deemed tq a

untransferable right 06 occupancy, the farmer of
default has bgen nmde in paying revenue. or the
maaagenaentda6M10fWardSastosignhirj
orlesee;
k
(k) the legsee is bound b disc}= to the
or W e n t of the interest which tfie ks&x is
is, and the lessor is not, aware, and which
rmeh interest ;
I
1
any fact .& r the nature
trike, of whi h the l e w
Uy incrmxs hd value of
Ii
1. Wos& M d by Act V1 d 1996.
2. W& utbclr?wt& fix words "durin& the cotltitntanoc chf the lease", by
I
(I) the lessce is bound to pay or &,adet, at the proper time and place, thc
premium or rcnt to the lessor or his a p t , in this beh?lf ;

(m)the lec c c c c c c c c c c c c c c c c c c is bound to keep, and

tim &ring the tern, to enter upan the prt$e@ and ins-
,ihere@fand give or leave notice M any defect in such bnd~tion;and, wben
sucb'defect has Wa caused by any act or Wauk on the prf of tbe l-,e,

such notice has been given or left ;

(n) if the lessee becomes aware oT atpy

with, the lesm's dghts concerni~~ c btopemy,
h
reasoaabfe diligence, noticc thereof to the fesssr;
ngw to@*-
or sny part thereof, or of any e n R w h M r t made OR, of any im&m

(0) the lessee may use the ptopeny and it& pcdws (if any) a s a person"
of ordinary prudence would use than icthey were bis own ; but he must not
use, w perm& another to use, the ny for B puqme *otherthan zbat for
which it was leased, or fell 'for xII] timber, ptll down ar damage buiidhs,
'pelonging to the lessor, or] work m i n e ot queries not am w)cen tko lea&
was granted, or commit any other act which is dauuclive or pctmanent$-
qurious thereto :

(p) he must not, \vithout the tesmr's consent, erect on the property any
permanent stmcture, except for agricutrural.parposes:;
on the lamination of
k property in as g o d condition as it was in 'at the 'rime when & was
restare, t
put in passession, subjaet only to the changes m s e d by reasonable d r bnb-
tear or irresistible force, and to allow the lessor and his agerrts, at all feasonable .
t h condition

his-servantsor agents, he is h n d t~ rrrake it lgoad $&thin three twMhs afiw

he is t d b d te give, \Mh
' '

(q) on the determination of the learn, the lessee is bound to put t h e ' l ~ o r
into possession of tlw property,
109. Rights ?[ lessor's rmmr/ree.~-if[isleawr trmsfar the, &pert$,
leased, or any part thereof, or any pan of his interest therein, the transferee,
in the absence of a contract lo the contrary, shall possess all Ihe rights, and, , .
if the lessee p elects. be subject to all the liabilities of the lessor as to the
projxrly or part transferred so long as he is thc m e r uf it; but the lessor shall
not, by reason only of such transfer, cease to be subject to any of the l i s b i b
imphseduponhimbythele9ae,unlegstht~etedstb~the~a~
the perm liable to him :
Provided that the transferee is not entitled to armrs of rent dul: &foe the
transfer, and that, if the lessee, not having regson to believe that wch trans&
has been made, pays rent to the teswr, tk lessee shall not be liable to pay
such rent over again to the transferee.
1. In case (1)) words in brackets i n s 4 d by Act VI of 19%.
.
*
the lwse to I

+
'
.

.
I

"
,

9
1

I
I
of thc Icasc.

commences.

Option to clcter~rrinc/case.

mines-

(a) by cMus of the time limited thereby ;

event--by lhc happening of such cvcnt ;

(e) by express surrender; that is to say, in

interest under the Icwc to the lessor, by mulua

(0 by imptiad surrcndcr ;
 7

mANSFER OF )IROR?RTY ilC7. 1977 (19% A D.) 347

up a titk in a third person or by cbim

imtvent a d the tease
of such eve& ;] atld in
I gves not& in writing 10 Lh
'I thc lease; / , .. #" '

01) on thc expiration of miice to ddctc6ine thc toast,. or to q & E ,

or of i m t b to quite, the property lms&, dub given the party @
thc dhcr. - -
I I l w s ~ ~ ~ to
ion&use (n

A lessee m pt from his bsor a new Icasc: of lhe prqmty rmscd,~totake

tffcc8 duriq (kc continua~ceor the existing #as,Thjq jsyn implid wtrwRbar,
d che fsnner tease, and such Icas determines lh&r?upon,
\ ' $~

112. Waiver affit$eirum. --A Earfeiture under EcGtion I 1 1. clause @, is

waived by lKIceptance of rent which has become due G m the forTdre,
or by distress for sueh rent, or by any other act an the prt of the lesw rhbnviagl
in inteation lo trait tIvc lase as subsisting :
.<
Provicfsd that the lessor is aware that r)re fsrteitum iEas b n in@urPeb :

Prwided also that, where renl b

accepted aflcr the innitucMl ol. a
suit t6 e&ct the lesrcc on thc ground d Weiturn, -such r b
8 .
not a waiver. l I

113. Mfalver o/nntice to qitir.-A Mice 8 i v a under scctiOn I 1 1, dsum

, (h), is wsived, with the cxpmss or intplied csnsent of the p e r m to whom it
is given,by as$'act on the p r l of thc p e r m giving it s h ~ % ~ an
i n giWnlhI
to veat the teak as subsisting.
illusf~n
finns.

(a) A, the lessor, gives 8, ihc lessee, nolice to q& t k propm'ty

The W b expi&. 0 tenders, and 4 aoceps, rrnt which has bt?ceme
myrocl of thc propcay sitlce the expiration of the notice. The not& is waked.

(b) A, l,kc tessor, gives B, the lesm, notice te quite the pspperty XctWd,-
fb notice mpilea, and B mmins in gosession. G giv@teiBas less;er:a Wi~q
notice to quite. T k first, mitic0 is wv8ivcd.
'4
c ~ jiifeiiure jur rwn-p$meni oJmnf. ---re
114. ~ e i i *in; a at+
immvabte pr;0pcrty b s dctcrmid by brkitrtre Fm noa-jmyn~WoTlr@ni, aa8
1. icpasad @A& \'loP199& %
2. War& ordulitutcd fw the wunb "&WT care" by itrrd.
1 3. We& sabs$iltttr?dtiw ia w& "&%% dmvii"; by &bid.
tgfilc *d

' -
*
- * .>L&b&
i-,: 1
 1
the lassor slim to eject tbe lessee, if, at the
or ten& to the lesgor the rcnt in arrcar,
his fidl costs of the suit, or gives such
for making such payment within fifteen
a decree for'ejectment pass an order
and thereupon the lessee shall hold
not aaxrred. ' I
i

'[114-A. Refief ngainsr forfeeiwe in

of immbwable properly has determined by forfeiture
condition which provides that on breach thereof
suit for ejwmcnt shall lie unless and mtil the
a notice in writing--

I- (a) specifying the particular breach.wmpIahed

(b) if the breach is

1

breach; and the lessee

service OF twnotice, to remedy the
I
Nothing in this section shall apply to an condition against the
assigning, under-letting, parting with the or disposinq of the
property leased, or 10 an espress conditisn in,caseiof non-
I
payment of rcnt.] 1

1 15. Efecf olsurrender and forfeiture o

express or implied, of a lease of immoveable
under-lease of the property or any part thereof
on terms anci conditio~ubstantiallythe sa
of rent) as those of the original lease; but, unless
the p u d c of obtaining a new lease, the
binding on. the under-lessee shall be respe
by the lessor.
The forfciture of such a lease annuls all such unde lessees, except where
such forfeiture has k e n proceed by the lessor in of the under-1I2ssees,
or relief agiinst the forfeiture is granted under I

1 16. Efect of holding over.--If

in possk4~1thereof after the dete
and the lessor or his legal repmentatwe accepts rent
lessee, or otherwise assents to his continuing in
abSme of an agreement to the contrary, renew
month to month, according40 the purpose for w
 - ' a ' - 7
1
I

TRANSFER OF PROPERTY ACT, 1 9 n (imo A. 0.1 349

I5susfrnfions

(a) A lets a house to B for five years. $ underGts the. h e to C at it

monthly rcnt af Rs. 100. The five 3lears expike, but C oontinues i
of the h s c and pays the rcnt to A. C's lease is renewed from mo

(b) A lcts a farm lo B for the life of C. C dies, but B continues in possc%icm
with A's asseru. B's lase is renewed from year k, par.
";

117. Eve~~ptiono/: lecits~sfor ugri~1(lItrxal of I k

provisions of this Chapter apply to leases for agtieu'lturl.
so far as '[Government] may by notifraitior~published
Kashmir Gwernmcnl Gazette, declare &*or aqy of such
applbble in the case of all or any of such leases,
to, those of the local laws, if any, fw the time being in force,

'Such notification shall not take effect untit the expiry of six rnortlhs from
the date of its publication I

C H m VI. .
Of Exchaagcs. .,
118. '*Ex&ange kflfied.-Wh ~IYO persons mututllly tmasfer thC
ge"

o~vnershipof o m thing for the ownership of aneher, wither thing nor both
things ,being moncy only, the transaction is ailed an !'exc.changc."

A transfer of property in completion of an exchmge can be ma& only in

manner p~ovidedfor the trad6 of such property sale.
A

'fii9. ~ l & t ~ f m ~ d @ f t ~ w d k e ~ . - l f k
an exchange or any person claiming thtwgh or under such parly is by reason -
of any dcfccf in tke titli of the other par@d q r i d 'oF the thing @a anx pr#
of the thing rcccived by him in exchange, tl.ten, unless a contrary' intention
appqcs from the terms of the eschange, such other party is liable to him or
%nyperspn claiming through or under him for loss caused t h e r e , or at the
aption oflhe person so deprived, for tf;e mum o'f* thing tnrnsfemd, if ail1
in the possession of such other party or his lepf representative or a mns&rce
from him without consideration.]

120. Righrs qncl linbfljties ofpnrtks. a at'^ as athe, wise provided in this
Cltaptor, each party has the rights and is subject to the liabititih of'a saliler
ns to that which hc gives, and has the rights and is subject to the liabiiitics
of a buyer as to 1h:it wlrich he takes. .
1. la wdioa 11 7 " < i o \ . ~ ~ l ] n ~ a~tfwtit~~lrld
~t'' ftX *.jlisHi$inas" 6y Act VI of 1%.
2. Secticnt I19 suhstitutd bv 161d.

".&&
-=
I 350 TR\NSFEH OF PROPERN ACT, 19/77 (1920 A. D.) -! I
12 1: Exchange of ~aoney.--Onan eschangc of maw, eac I patty thereby
tvarrants thc genuineness of the money given by him.
4
!
CHAPTER VII,, i
Of Gifts.
I
122. "GiJ1' ' dcJned.--"Gin" is the transfe of certain
'e.

or immovccabl~property made \~oluntarilyand without con

pcrson. cafled the donor, to another, called the donee, and
&half of thc dance.

Accepfancc~wjhm to he nm&
it tI
Such acceptance must be made during the {if time of the
he is still cap tlle of giving.

If the donce dics bcfore acceptance. the gift 's void.

or and while

123. li.nn.@r hoiv c[ficfe~l.--For thc

immovcable property. the transfer inllst be
signcd by or on bchalf of the donor, and
I
I
For the purpose of making a gift of
be effected cither by a ngistcrcd
by delivery.

Such deliveq rnay be made in the same

delivered I dy as goods b d may be
!

Erplonnlion.--The\\lord "attest" has the sam meaning in il/is section as

in section 59. I
I
I

124. G# o/Exisling nndfitureproperty.--A iR comprising b h existing

and future property is void as to the latlcr.

125. Gij'r to sel~ert~l one does nol

of whor~~
two more donees, of-whom one docs not accept
which he would,tta\le taken had be accepted.

126. N/hc'ngi/l vlny be suspn

agree that on thc happening of any
dQmd
t which
donee may
not depend
on the will of the don& a gift shall be
the prtics agree shall be revocable w
donor, is void wvholly' or in part, as

i
A gift may atso bc revoked in any of thc ca s (save want
consideration) in which, if it $!ere a c o n r r k i t ight bo oosci

I1
 1

'fRANSFER 01: PROPERTY ACT, t977 f 1320 A. 0.) . 3St

Save as aforesaid, a gift catln@tbe rc~oked,..,
PJothing contained in this section shall be'dccmlxf to affat the righls of
transfcrecs Fbr consideration \\ti thou1 naicc.
I!lustrmlinns

f (a) A giws a fidd to B, reseaving himself, with B's' amt tke ligtu to
take back the fiekt in case B and his detxewiarrts die bc&fe A. S dies \witttout
&scadamin A'sllife-time. A may take back the fiekl,
t

(b) A g i w a Iakh of rupees to B, rcscnling to himsif, wi#h*Wsa s m ,

the right to &kc back at plcasun: Rs. I O . t r n , . ~ ~oft the lakh. TJe &iR holds
good as lo Rs. W.000, but is void as to Rs. trr,oO, which continue la h b n g
to A.

127. Orierotzs g@s..--Whn: a gi#i is in the Cotm of a single Ztansfer

to thc wmo pcrsott of swcml things uf which onc is a& tlle o w are not,
bur$crtod by an obligation. the dmce an take nahittg by 4 t w @R ua- hcr
mcpts il litlly.

Wkrc a gift is in the form of t\\a OT m m sepnlc tmd ifl.dcperndcnttransfers

t~ the same person of several things, tk doncc is at iibcrty to aqzpt om ulC
them and refuse the others, although the fonner may be bcncficM and the ,
onetoils. i

AdQaGGnot€oqWmtto *
&slt
+

O n c w gi$ to dsquuiijled
gtrm *,
. ifllustrntions.

(a) A Bas skres in X, a fw@sperousjoint stock company, and a&sa sham

,iff Y,a @R( sack canp;lny:in djfki4ties. Heaty calls arc e s h t d i n
d ttfe shrrm in Y . A gi\?csB ail itis a h - in joint slack companies. B
to accept the shrcs in Y. Ne c@nnottake the'shes in X.
' (b) A having a lezlsc for a tern of years of a house at a rent he
and his reprcsentrtlivcs aw bound to pay duriM the tcnn, a d *.kM is more
than (hc h a t s can bc Ici for, @VGS to B the lcaw and also, as a %patateawl
nCtcrrt transaction. a sum of money. B m f w s toacecpr the hSe
.He &ws
this refus81 forkit thc m c y .
128. Unit~crsnldome.--Subject &.the girw
giR amsists of' rhc donor's w W pmperty, tfrc
352 'TRANSFER O F PROPERTY ACT, 1977 (19 0 A.

all the debts due by '[and liabilities oq the donq

t D.)

t i m e d the
I
to the
estent of the propcrty comprised lhcreia.
II
z[129. Saving.--Nothing in this Chapter
pi;operty made in contemplation of Wfh, or
as provided by section 123, any rule of
any rub of Mohammedan law.]
i

130. Trm+r ~J'ocfionoblcclnir)t.--(I ) Th

a[whdkerwith or without consideration] shall
of a D i n s t m n t in writing signcd by the tra
agent, and shall be complcte and tfkctual
i~strument,gnd thcrcupon all the rights and re
by way of daniagcs or othenvise, shall vest
notice of the transfer as is hercinaftcr prov

Providcd that every dealing with the de

debtot or other .brson from or against str
instrument of transfer as aforesaid, have been en
debt or other actionable claim,
is a party to thc transfcr or has rccei
provided) be valid as against such transfer.

(2) The transferee of an act

instrument of transfer as aforcaid, sue or institute
in his own mmc \vith~outobta
p r d i n g s and wit%r making him a party chcret
!

Erccp1ion.--Nothing in this section applies to the ( ander of a tndiine or

fire pol) of insurance '[or aflects the pro&sions of m i o n 37 of the lnprance
Act]. I
* I
Illusrratinns. 1I
(i) A avcs money tog; who transfers the debt to C'. B then derna ds the
dcbt frow A, j v b , nor having received notice of the tmhsfer; as pmicr, in
scction 131, pays B. The payment is valid;and C cannot sue A for th+ debt.
v
CI
I. fa wainn I28 ~rordsin bqaclcls imcned hy Aut VI of 19%.
1. S ~ r t i m129 subraitutcd by Ad V of 2003. I
2.
3.
I n se~?io~r
UL
130 wonk in brsckc~sinsode by A,, V I UP 19%.
~ 81 d fhs fnsntmce :ZcY SV ol 19,
by =?ion I
I
 H4 , TRANSFER OF PRO

136. Incapcity of oflcers

legal pmetition~& orticer con
t W t c in, or stipul& for, or
mionabk claim, and no G
h e instaw of arly p m n
so dealt with by him as aforasaid.

i
137. &\ling 01negotinbic instrun~cnts,etc. -Nothing in
secti6ns of this Chaptcr applies to aocks, shares or ebentures Qr
which are for thc iimq being, by law or custom, ne otiable or to
document of titlc to goods.
'

Exp1nnntion.--The espression "mcrcant

incudes a bill of Lading, dock-warrant, ivatc:
receipt, warranl or order for thc dcfivcry
used in the ordinary course of bbsiuess a
of goods, or ailthorising or purporting to
by delivery, thc possessor of the dkmdm
I represented.
138. ~rnn.&er$ i,nmovnbk propr!y
transfer of immo\~ablcproperty, exccpt in :I
to the contrary, shall be vdid unlcss and
'[the rcgistrntion thereof has
(3) of section 61 of the Registtation Act, 1977.1
(2) No Coua shall
of any such immovable
'of sub-section (1).
1
(3) No person shall take possession of, or
any land in the Pfoulnc$ of Kashmir which
coWcted,to be to him unkss and

(4) No person who has obtained a transfer

* to in cub-seaion (1) ski1 apply for and
8Citkment O&cer or Cmrt any alteration
Stttkment Record or paper, u n k such
M Court I duly expxtcd registered
been completed in the manner
A d no such officer or Court slm11 alter or
 --
~
TRANSFER OF PROPERTY A m , Ism ( l 9 a A. D.) ' 35s . 2

Provided that nothing in this section appiics to a lease d a@icutI~nIland

for one year or to a lease of any &her land for a period mt exasding w e n
years:

Provided &so that nothing in sub-wSio118 (3) and (4) Mi be deeaaed to

apply to transfers by will or by any rule of inestlcte S U ~ wOby ~the
operation of the law of survivorship.

t 39. Snving in certnin regulniions, i-lirkyt~t,Res~lirti@n, etc.--( 1) Nothing

in this Act shall aflkct any Regulati~~, Ilidq~nr,R ~ l u t i o nAilnn.
, Rtite or
valid custom now in fcrcc restricting and regulating transfer of immoveeble
property in any part of the Jamrnu and Kashtnir State or any right therein, or
confer any right, or rights oftransfer espressfy taken away or restricted by any
such enactment.

(2) In particular and without prejudice lo t b gmratity ;ofthe! provisions

k sub-sectisn ( I ) the Mrictions and NI& containeb in the foilowing shall
be obsctnwl :-- I

(i) No. 504 of 1893.

(ii) St'ate Council Resolution No. 17 of 22nd-June, 1895.

(iii) Slate Council Resolulio~~
No. 9 of 12th OcLukf, 1895.

(iv) Sbtc Council Resolution No. 52 of %h CWAW, 1887.

(v) Aiian No. 18 of 3rd Poh. 1964.

(vi) Hidstyat under section 73 regarding alknatfon sanctioned by His

Highness and conveyed under CAief Midstcr's lelter No. 2301 of2lst
July, 1916.

(vii) fliLLyat No. 1%5/298of.24th Ma*. 1973.

(viii) Saata Council Resoltllion No. 37 of 24th AtigtM, I%%. 2%

- 1 I

(ix) AiM Na. 3 of 13th Assuj, 1963.

(x) Ailan No, 4 of 18th B*isakh, 1975.

( x i ) Wte Council R d u t, i e n No. 2 of 2%h OcloBQr, 1903.
I

(zii) @rc Cnuneil Rerolvliw No. l(l'of ilst AugW 1905.

Ur ' ' d , . , .-
1. n Mian 138 mbdituicd by
doted Sib Jab. 19tt3 (EL*).
h O~lokut.4'921).

&% *.- w- - *<. '

, 3-
&&
 transfers of land in Mirpur.

(xvi) S. C. R. No. 48 of 27th March, 1893

(xviil) Irshad dated 29th Maghar, 1943.

(xix) 1rshac-t dated 23rd Magh, 1962.

(xxi) Irshad No. 276 dated 17th Chet, 1947

(xxiii) Irshad dated 15th Baisakh, 1966.

(xxiv) Irshad of 27th Poh, 1951.-

(XXV) Irshad No. 13 of 18th Chet, 1949.

(wi)S.C.R No. 50 dated 7th September, 1

(xxx) Irshad of 19th Baisakh, 1966.

(xxxii) Irshad of 2nd Bhadon, 1970. ,

(xxxiii) Irshad of 30th Jeth, It%$.

!
 ri) theJammuandKrrshmirF3atkLtd.
' ofI~ora~forthetimebei
the ltmewe Bank of India Act, 193
the business of banking in the

(vii) the Unit Trust of India :

I
'[(viii) Tk amm mu and Kashmir Homing constihaed umkr tbc J a m
and Kashmir Housing Board Act, 1976. i \-
I
Provided that in any suit W on such the n m r t g a @ ~ r t yshall
be sold ady to a permanent reddent of the State.] ,
I

yiatil a simple mbrtgage of land in fam of-

(i) the Jammuand Kashmir ltp9nlr
of India or a Bank for the time
theRcaGNcBankaflndiaAct,
tlte business of banking in the State ;

tb Sete Financial
I
'[iii) New -
* compn).
~tlrtbusinessinthestate;

Cv) unirrd lndia ilkiknw Co- LimiW

actingthtbusinessintheStatt;or

Lintited -timi Jammu and

I+--
 THE TRANSFER OF PROPERTY (AMENDMENT)
ACT, 2002.
Act No. XX of 2002.
[Received the assent of the Governor on 2lst April, 2002
and published in the Government Gazette dated 23rd ApriI,
20021.
An Act to amend the Transfer of Property Act, Samvat 1977.
Be it enacted by the Jammu and Kashmir State Legislature in
the Fifty-third Year of the Republic of India as follows :-
1. Shon title and commencement.~(1) This Act may be called
the Tnmsfbr of Property (Amendment) Act, 2002.
(2) It shall be deemed to have come into.force with effect from
4th February, 2002.
2. Amendment of section 140, Act XLJI of Samvat 1977.-
After clause (g) of section 140 of the Transfer of Property Act,
Samvat 1977, the following clause shall be inserted, namely :-
"(h) a simple mortgage of immovable property executed or
created in favour of a public financial institution, as specified in section
4-A of the Companies Act, 1956, a scheduled bank for the time being
included in the Second Schedule to the Reserve Bank of India Act,
1934 and the Trustees for the holders of debentures to secure the
loans, guarantees, issue of debentures or other form of financial
assistance provided fir developmental projects in the State of Jammu
and Kashmir like Baghliar Project of Jammu and Kashmir State Power .
Development Corporation Limited :
Provided that in any suit based on such mortgage, the mortgaged
property shall be sold or transferred only to a permanent resident
of the State."
Repeal and saving.-(1) The Transfer of Property (Amcodment)
Ordiice, 2002 (Ordinance No. 1 of 2002) is hereby replod.
(2) Notwithstanding such repeal, anything done or any action
tdc-en under the said Ordinance shall be deemed to have bcen done
or taken under this Act.
* ---
 L

( 197

THE TRANSFER OF PROPERTY (SECOND

AMENDMENT) ACT, 2002.

Act No. XXIX of 2002).

[Received the assent of the Governor on 21st April, 2002

and published in the Government Gazette dated 23rd April,
20021.

An Act to amend the Transfer of Property Act, Samvat 1977.

Be it enacted by the Jarnmu and ~ a s b i State
r Legislature in the
Fifty-third Year of the Republic of India as follows :-

1. Short title and commencement.-(i) This Act may be called

the Transfix of Property (Second Amendment) Act, 2002.
(ii) It shall come into force on the date of its publication in the
Government Gazette.

2. Amendment of ~ e c n r ~ na~ t, No.

' XUI of Samvat 1977.-
In section 59 of the Transfer of Property Act, Samvat 1977-

(a) for the words "A qortgage" the words "A mortgage except
the mortgage by deposit of title deeds in favour of financial
institutions" shall be substituted ; and

(b) at its end, the following Explanation shall be added,

namely :-

"Explanation :-For purposexi of this section, the 'financial

institutions' shall mean-
(i) the Jamrnu and Kashmir Bank Ltd. ;
(ii) the Industrial Development Bank of India ;
(iii) a bank for the time being included in the Second Schedule
of the Reserve Bank of india Act, 1934 and having an
office for transacting the business of btutlring-in the
State ;
 (iv) the Industrial C
India ; i
(v) the Housing and Urban Development Corporation
Limited, New Delhi ;
(vi) the Jammu and Kashihir stat& Financial Corporation
established under the State ~idancialCorporation Act,
1951 ;
(vii) the Life Insurance Corporation of India established under
the Life Insurance Corporation Act, 1956 ;
(viii) the General Insurance Corpora(tion and its subsidiary
Companies ;
(ix) the Industrial Finance Corporahn of India established
under the Industrial Finance Cdrporation Act, 1946 ;
(x) all ~ e ~ i o nRural
a l Banks establibhed under the Regional
Rural Banks Act, 1976, and having an office for
transacting business of banking1 in the State ;
(xi) the Jammu and Kashmir State lCo-operative Bank ;
(xii) the Jammu. and Kasbmir Centtal Co-operative Bank,
Anantnag/Bararnulla, Central Cb-operative Banks and
Jammu Citizens Cosperative BBnk ;
(xiii) the Jamrnu and Kashmir Land 'Development Bank ;
(xiv) the National Bank for ~ g b i c u l t u r e and Rural
Development (NABARI)) ; and,
(XV)the Jammu and Kashmir Scheduled Castes and other
Backward Classes Development 1 Corporation Ltd. ;
I

(xvi) the Jammu and Kashmir M(omcna Development

Corporation Ltd".
i
---
I
I
I

,
I

I
!1

I
I