Indian_Real_Estate_Law (2)
Indian Real Estate Laws 1164.117 Saving of donationsmortis causaand MuhammadanLaw129. Nothing in this Chapter relates to giftsof moveable property made in contemplationof death, or shall be deemed to affect any ruleof Muhammadan law 1[***].4.118 Transfer of actionableclaim130. (1) The transfer of an actionable claim1[whether with or without consideration] shallbe effected only by the execution of an instrumentin writing signed by the transferor or hisduly authorised agent, 2[***] shall be completeand effectual upon the execution of such instruments,and thereupon all the rights andremedies of the transferor, whether by way ofdamages or otherwise, shall vest in the transferee,whether such notice of the transfer as ishereinafter provided be given or not: Providedthat every dealing with the debt or other actionableclaim by the debtor or other personfrom or against whom the transferor would,but for such instrument of transfer as aforesaid,have been entitled to recover or enforcesuch debt or other actionable claim, shall (savewhere the debtor or other person is a partyto the transfer or has received express noticethereof as hereinafter provided) be valid asagainst such transfer.(2) The transferee of an actionable claimmay, upon the execution of such instrumentof transfer as aforesaid, sue or institute proceedingsfor the same in his own name withoutobtaining the transferor’s consent to suchsuit or proceeding and without making him aparty thereto. (Exception) —Nothing in thissection applies to the transfer of a marine orfire policy of insurance 3[or affects the provisionsof section 38 of the Insurance Act, 1938(4 of 1938)]. Illustrations(i) A owes money to B, who transfers thedebt to C. B then demands the debt from A,who, not having received notice of the transfer,as prescribed in section 131, pays B. Thepayment is valid, and C cannot sue A for thedebt.(ii) A effects a policy on his own life with anInsurance Company and assigns it to a Bankfor securing the payment of an existing or futuredebt. If A dies, the Bank is entitled toreceive the amount of the policy and to sueon it without the concurrence of A’s executor,subject to the proviso in sub-section (1)of section 130 and to provisions of section 132.1[130A. Transfer of policy of marine insurance.—[Rep.by the Marine Insurance Act,1963 (11 of 1963), sec. 92 (w.e.f. 1-8-1963)].]131. Notice to be in writing, signed.—Everynotice of transfer of an actionable claim shallbe in writing, signed by the transferor or hisagent duly authorised in this behalf, or, in casethe transferor refuses to sign, by the transfereeor his agent, and shall state the name and addressof the transferee.132. Liability of transferee of actionableclaim.—The transferee of an actionable claimshall take it subject to all the liabilities and equitiesand to which the transferor was subjectin respect thereof at the date of the transfer.Illustrations(i) A transfers to C a debt due to him by B,A being then indebted to B. C sues B for thedebt due by B to A. In such suit B is entitledto set off the debt due by A to him; although Cwas unaware of it at the date of such transfer.(ii) A executed a bond in favour of B undercircumstances entitling the former to haveit delivered up and cancelled. B assigns thebond to C for value and without notice of suchcircumstances. C cannot enforce the bondagainst A.133. Warranty of solvency ofdebtor.—Where the transferor of a debt warrantsthe solvency of the debtor, the warranty,in the absence of a contract to the contrary,applies only to his solvency at the time of thetransfer, and is limited, where the transferis made for consideration, to the amount orvalue of such consideration.4.119 4. THE TRANSFER OF PROPERTY ACT, 1882
117 Indian Real Estate Laws4.119 Mortgaged debt134. Where a debt is transferred for the purposeof securing an existing or future debt, thedebt so transferred, if received by the transferoror recovered by the transferee, is applicable,first, in payment of the costs of suchrecovery; secondly, in or towards satisfactionof the amount for the time being secured bythe transfer; and the residue, if any, belongsto the transferor or other person entitled toreceive the same.4.120 Assignment of rightsunder policy of insuranceagainst fire1[135. Every assignee by endorsement or otherwriting, of a policy of insurance against fire, inwhom the property in the subject insured shallbe absolutely vested at the date of the assignment,shall have transferred and vested in himall rights of suit as if the contract contained inthe policy has been made with himself.]4.121 Assignment of rightsunder policy of marineinsurance1[135A. [Rep. by the Marine Insurance Act,1963 (11 of 1963), sec.92, (w.e.f. 1-8-1963)].]4.122 Incapacity of officersconnected withCourts of Justice136. No judge, legal practitioner or officer connectedwith any Court of Justice shall buy ortraffic in, or stipulate for, or agree to receiveany share of, or interest in, any actionableclaim, and no Court of Justice shall enforce, athis instance, or at the instance of any personclaiming by or through him, any actionableclaim so dealt with by him as aforesaid.4.123 Saving of negotiableinstruments, etc.137. Nothing in the foregoing sections of thisChapter applies to stocks, shares or debentures,or to instruments which are for the timebeing, by law or custom, negotiable, or to anymercantile document of title to goods. Explanation.—Theexpression “mercantile documentof title to goods” includes a bill oflading, dock-warrant, warehouse-keeper’s certificate,railway receipt, warrant or order forthe delivery of goods, and any other documentused in the ordinary course of businessas proof of the possession or control of goods,or authorising or purporting to authorise, eitherby endorsement or by delivery, the possessorof the document to transfer or receivegoods thereby represented. THE TRANSFEROF PROPERTY ACT, 1882 THE SCHED-ULE (A) STATUTES Year and Chapter SubjectExtent of repeal 27 Hen. VIII c. 10 UsesThe Whole. 13 Eliz., c. 5 Fraudulent conveyancesThe Whole. 27 Eliz., c. 4 Fraudulentconveyances The Whole. 4 Wm and marry,c. 16 Clandestine mortgages The Whole. (B)ACT OF THE GOVERNOR GENERAL INCOUNCIL Number and Year Subject Extentof repeal X of 1842 Lease and re-lease TheWhole XXXI of 1854 Modes of conveying landSection117 XI of 1855 Mesne profit and improvementSection 1; in the title, the word"to mesne profits and", and in the preamble"to limit the liability for mesne profits and"XXVII of 1866 Indian Trustee Act Section 31.V of 1872 Punjab Laws Act So fas as it relatedto Bengal Regulations 1 of 1798 and XVII of1806 XX of 1875 Central Provinvces Laws ActSo fas as it related to Bengal Regulations 1 of1798 and XVII of 1806 XVIII of 1876 OudhLaws Act So fas as it related to Bengal RegulationsXVII of 1806 1 of 1877 Specific ReliefIn section 35 and 36, the word "in writing".(C) REGULATIONS Number and years SubjectExtent of repeal Bengal Regulation 1 of1798 Conditional Sale The Whole RegulationBengal Regulation XVII of 1806 RedemptionThe Whole Regulation Bombay Regulation Vof 1827 Acknowledgement of debts; interest;Mortgagees in possession Section 15 1. Ins.4. THE TRANSFER OF PROPERTY ACT, 1882 4.123
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117 Indian Real Estate Laws
4.119 Mortgaged debt
134. Where a debt is transferred for the purpose
of securing an existing or future debt, the
debt so transferred, if received by the transferor
or recovered by the transferee, is applicable,
first, in payment of the costs of such
recovery; secondly, in or towards satisfaction
of the amount for the time being secured by
the transfer; and the residue, if any, belongs
to the transferor or other person entitled to
receive the same.
4.120 Assignment of rights
under policy of insurance
against fire
1[135. Every assignee by endorsement or other
writing, of a policy of insurance against fire, in
whom the property in the subject insured shall
be absolutely vested at the date of the assignment,
shall have transferred and vested in him
all rights of suit as if the contract contained in
the policy has been made with himself.]
4.121 Assignment of rights
under policy of marine
insurance
1[135A. [Rep. by the Marine Insurance Act,
1963 (11 of 1963), sec.92, (w.e.f. 1-8-1963)].]
4.122 Incapacity of officers
connected with
Courts of Justice
136. No judge, legal practitioner or officer connected
with any Court of Justice shall buy or
traffic in, or stipulate for, or agree to receive
any share of, or interest in, any actionable
claim, and no Court of Justice shall enforce, at
his instance, or at the instance of any person
claiming by or through him, any actionable
claim so dealt with by him as aforesaid.
4.123 Saving of negotiable
instruments, etc.
137. Nothing in the foregoing sections of this
Chapter applies to stocks, shares or debentures,
or to instruments which are for the time
being, by law or custom, negotiable, or to any
mercantile document of title to goods. Explanation.—The
expression “mercantile document
of title to goods” includes a bill of
lading, dock-warrant, warehouse-keeper’s certificate,
railway receipt, warrant or order for
the delivery of goods, and any other document
used in the ordinary course of business
as proof of the possession or control of goods,
or authorising or purporting to authorise, either
by endorsement or by delivery, the possessor
of the document to transfer or receive
goods thereby represented. THE TRANSFER
OF PROPERTY ACT, 1882 THE SCHED-
ULE (A) STATUTES Year and Chapter Subject
Extent of repeal 27 Hen. VIII c. 10 Uses
The Whole. 13 Eliz., c. 5 Fraudulent conveyances
The Whole. 27 Eliz., c. 4 Fraudulent
conveyances The Whole. 4 Wm and marry,
c. 16 Clandestine mortgages The Whole. (B)
ACT OF THE GOVERNOR GENERAL IN
COUNCIL Number and Year Subject Extent
of repeal X of 1842 Lease and re-lease The
Whole XXXI of 1854 Modes of conveying land
Section117 XI of 1855 Mesne profit and improvement
Section 1; in the title, the word
"to mesne profits and", and in the preamble
"to limit the liability for mesne profits and"
XXVII of 1866 Indian Trustee Act Section 31.
V of 1872 Punjab Laws Act So fas as it related
to Bengal Regulations 1 of 1798 and XVII of
1806 XX of 1875 Central Provinvces Laws Act
So fas as it related to Bengal Regulations 1 of
1798 and XVII of 1806 XVIII of 1876 Oudh
Laws Act So fas as it related to Bengal Regulations
XVII of 1806 1 of 1877 Specific Relief
In section 35 and 36, the word "in writing".
(C) REGULATIONS Number and years Subject
Extent of repeal Bengal Regulation 1 of
1798 Conditional Sale The Whole Regulation
Bengal Regulation XVII of 1806 Redemption
The Whole Regulation Bombay Regulation V
of 1827 Acknowledgement of debts; interest;
Mortgagees in possession Section 15 1. Ins.
4. THE TRANSFER OF PROPERTY ACT, 1882 4.123