{ "schema_version": "qanun-law-text/1", "id": "punjab-code-4ecfa4c32e8b037d", "title": "TRANSFER OF PROPERTY ACT 1882", "source_collection": "Punjab", "content_kind": "stored_law_text", "content_extent": null, "source_url": "https://punjabcode.punjab.gov.pk/en/show_article/VmBWY1dhBzI-", "version": null, "source_snapshot": "2026-08-06T17:03:54Z", "legal_status": "not independently verified", "text_quality": "Complete stored UTF-8 TXT file recovered byte-for-byte from owned Drive. Source transcription retained verbatim; legal completeness, OCR accuracy and current consolidation unverified.", "text_sha256": "7de8fad82f6b83a2335a7fba6422a57deb89972672292f35b5d0e892a03b2392", "source_sha256": "7de8fad82f6b83a2335a7fba6422a57deb89972672292f35b5d0e892a03b2392", "text_version_id": "law:punjab-code-4ecfa4c32e8b037d:sha256:7de8fad82f6b83a2335a7fba6422a57deb89972672292f35b5d0e892a03b2392", "quality_flags": [], "encoding": "UTF-8", "text": "THE TRANSFER OF PROPERTY ACT, 1882 \r\n(IV of 1882) \r\nCONTENTS \r\nCHAPTER I \r\nPRELIMINARY \r\n1. Short title, commencement, extent and exemption. \r\n2. Repeal of Acts. S aving of certain enactments, incidents, rights, \r\nliabilities, &c. \r\n3. Interpretation-clause. \r\n4. Enactments relating to contracts to be taken as part of Act IX of 1872. \r\nChapter II \r\nOf Transfers of Property \r\nby Act of Parties \r\n(A).–Transfer of Property, \r\nwhether moveable or immoveable. \r\n5. “Transfer of property” defined \r\n6. What may be transferred \r\n7. Persons competent to transfer \r\n8. Operation of transfer \r\n9. Oral transfer \r\n10. Condition restraining alienation \r\n11. Restriction repugnant to interest created \r\n12. Condition making interest determinable on insolvency or attempted \r\nalienation \r\n13. Transfer for benefit of unborn person \r\n14. Rule against perpetuity \r\n15. Transfer to class some of whom come under sections 13 and 14 \r\n16. Transfer to take effect on failure of prior interest \r\n17. Direction for accumulation \r\n18. Transfer in perpetuity for benefit of public \r\n19. Vested interest \r\n20. When unborn person acquires vested interest on transfer for his benefit \r\n21. Contingent interest \r\n22. Transfer to members of a class who attain a particular age \r\n23. Transfer contingent on happening of specified uncertain event \r\n24. Transfer to such of certain persons as survive at some period not \r\nspecified \r\n25. Conditional transfer \r\n26. Fulfilment of condition precedent \r\n27. Conditional transfer to one person co upled with transfer to another on \r\nfailure of prior disposition \r\n28. Ulterior transfer conditional on happening or not happening of specified \r\nevent \r\n29. Fulfilment of condition subsequent \r\n30. Prior disposition not affected by invalidity of ulterior disposition \r\n31. Condition that transfer shall cease to have effect in case specified \r\nuncertain event happens or does not happen \r\n32. Such condition must not be invalid \r\n33. Transfer conditional on performance of act, no time being specified for \r\nperformance \r\n34. Transfer conditional on performance of act, time being specified \r\nElection \r\n35. Election when necessary \r\nApportionment \r\n36. Apportionment of periodical payments on determination of interest of \r\nperson entitled \r\n37. Apportionment of benefit of obligation on severance \r\n(B) .–Transfer of Immovable Property \r\n38. Transfer by person authoris ed only under certain circumstances to \r\ntransfer \r\n39. Transfer where third person is entitled to maintenance \r\n40. Burden of obligation imposing restriction on use of land, or of obligation \r\nannexed to ownership but not amounting to interest or easement \r\n41. Transfer by ostensible owner \r\n42. Transfer by person having authority to revoke former transfer \r\n43. Transfer by unauthorized person who subsequently acquires interest in \r\nproperty transferred \r\n44. Transfer by one co-owner \r\n45. Joint transfer for consideration \r\n46. Transfer for consideration by persons having distinct interests \r\n47. Transfer by co-owners of share in common property \r\n48. Priority of rights created by transfer \r\n49. Transferee’s right under policy. \r\n50. Rent bona fide paid to holder under defective title. \r\n51. Improvements made by bona fide holders under defective titles. \r\n52. Transfer of property pending suit relating thereto. \r\n53. Fraudulent transfer. \r\n53-A. Part performance. \r\nCHAPTER III \r\nOF SALES OF IMMOVEABLE PROPERTY \r\n54. “Sale” defined. Sale how made. Contract for sale. \r\n55. Rights and liabilities of buyer and seller. \r\n56. Marshalling by subsequent purchaser. \r\nDischarge of Incumbrances on Sale \r\n57. Provision by Court for incumbrances and sale freed therefrom. \r\nCHAPTER IV \r\nOF MORTGAGES OF \r\nIMMOVEABLE PROPERTY AND CHARGES \r\n58. “Mortgage,” “mortgagor” and “mortgagee” defined. \r\nSimple mortgage. \r\nMortgage by conditional sale. \r\nUsufructuary mortgage. \r\nEnglish mortgage. \r\n Mortgage by deposit of title-deeds. \r\n Anomalous mortgage. \r\n59. Mortgage when to be by assurance. \r\n59A. References to mortgagors and mortgagees to include persons deriving \r\ntitle from them. \r\nRights and Liabilities of Mortgagor \r\n60. Right of mortgagor to redeem. Redemption of portion of mortgaged \r\nproperty \r\n60A. Obligation to transfer to third party instead of re -transference to \r\nmortgagor. \r\n60B. Right to inspection and production of documents. \r\n61. Right to redeem separately or simultaneously. \r\n62. Right of usufructuary mortgagor to recover possession. \r\n63. Accession to mortgaged property. Accession acquired in virtue of \r\ntransferred ownership. \r\n63A. Improvements to mortgaged property. \r\n64. Renewal of mortgaged lease. \r\n65. Implied contracts by mortgagor. \r\n65A. Mortgagor’s power to lease. \r\n66. Waste by mortgagor in possession. \r\nRights and Liabilities of Mortgagee \r\n67. Right to foreclosure or sale. \r\n67A. Mortgagee when bound to bring one suit on several mortgages. \r\n68. Right to sue for mortgage-money. \r\n69. Power of sale when valid. \r\n69A. Appointment of receiver. \r\n70. Accession to mortgaged property. \r\n71. Renewal of mortgaged lease. \r\n72. Rights of mortgagee in possession. \r\n73. Right to proceeds of revenue sale or compensation on acquisition. \r\n74. & 75. Repealed. \r\n76. Liabilities of mortgagee in possession. Loss occasioned by his default. \r\n77. Receipts in lieu of interest. \r\nPriority \r\n78. Postponement of prior mortgagee. \r\n79. Mortgage to secure uncertain amount when maximum is expressed. \r\n80. Repealed. \r\nMarshalling and Contribution \r\n81. Marshalling securities. \r\n82. Contribution to mortgage-debt. \r\nDeposit in Court \r\n83. Power to deposit in Court money due on mortgage. \r\n84. Cessation of interest. \r\n86 to 90 Repealed. \r\nRedemption \r\n91. Persons who may sue for redemption. \r\n92. Subrogation. \r\n93. Prohibition of tacking. \r\n94. Rights of mesne mortgagee. \r\n95. Right of redeeming co-mortgagor to expenses. \r\n96. Mortgage by deposit of title-deeds. \r\n97. Repealed. \r\nAnomalous Mortgages. \r\n98. Mortgage not described in section 58, clasues (b), (c), (d) and (e) \r\n99. Repealed. \r\nCharges \r\n100. Charges. \r\n101. No merger in case of subsequent encumbrance. \r\nNotice and Tender \r\n102. Service or tender on or to agent. \r\n103. Notice, &c., to or by person incompetent to contract. \r\n104. Power to make rules. \r\nCHAPTER V \r\nOF LEASES OF IMMOVEABLE PROPERTY \r\n105. Lease defined. \r\n Lessor, lessee, premium and rent defined. \r\n106. Duration of certain leases in absence of written contract or local usage. \r\n107. Leases how made. \r\n108. Rights and liabilities of lessor and lessee. \r\n109. Rights of lessor’s transferee. \r\n110. Exclusion of day on which term commences. Duration of lease for a \r\nyear. Option to determine lease. \r\n111. Determination of lease. \r\n112. Waiver of forfeiture. \r\n113. Waiver of notice to quit. \r\n114. Relief against forfeiture for non-payment of rent. \r\n114 A. Relief against forfeiture in certain other cases. \r\n115. Effect of surrender and forfeiture on under-leases. \r\n116. Effect of holding over. \r\n117. Exemption of leases for agricultural purposes. \r\nCHAPTER VI \r\nOF EXCHANGES \r\n118. “Exchange” defined. \r\n119. Right of party deprived of thing received in exchange. \r\n120. Rights and liabilities of parties. \r\n121. Exchange of money. \r\nCHAPTER VII \r\nOF GIFTS \r\n122. “Gift” defined. Acceptance when to be made. \r\n123. Transfer how effected. \r\n124. Gift of existing and future property. \r\n125. Gift to several, of whom one does not accept. \r\n126. When gift may be suspended or revoked. \r\n127. Onerous gift. \r\n128. Universal donee. \r\n129. Saving of donations mortis causa and Muslim law. \r\nCHAPTER VIII \r\nOF TRANSFERS OF ACTIONABLE CLAIMS \r\n130. Transfer of actionable claim. \r\n130A. Transfer of policy of marine insurance. \r\n131. Notice to be in writing signed. \r\n132. Liability of transferee of actionable claim. \r\n133. Warranty of solvency of debtor. \r\n134. Mortgaged debt. \r\n135. Assignment of rights under policy of insurance against fire. \r\n135A. Assignment of rights under policy of marine insurance. \r\n136. Incapacity of officers connected with Courts of Justice. \r\n137. Saving of negotiable instruments, etc. \r\nTHE SCHEDULE–ENACTMENTS REPEALED. \r\nTEXT \r\n1\r\nTHE TRANSFER OF PROPERTY ACT, 1882 \r\n(IV of 1882) \r\n[18th February, 1882] \r\nAn \r\nAct \r\nto amend the law relating to the Transfer of Property by act of Parties. \r\nPreamble.– WHEREAS it is expedient to define and amend certain parts of the law \r\nrelating to the Transfer of Property by Act of parties; It is hereby enacted as follows:– \r\nCHAPTER I \r\nPRELIMINARY \r\n2\r\n[1. Short title, commencement, extent and exemption .– (1) This Act may be \r\ncited as the Transfer of Property Act, 1882. \r\n (2) It shall come into force on the first day of July, 1882. \r\n (3) The Government may, by notification in the official Gazette, extend the \r\nAct to the whole or any part of the Punjab. \r\n (4) The Government may, by notification in the official Gazette, exempt \r\neither retrospec tively or prospectively, any part of the Punjab from all or any of \r\nparagraphs 2 and 3 of section 54, section 59, section 107 and section 123. \r\n \r\n1For Statement of Objects and Reasons, see Gazette of India, 1877, Pt. V, p.171; for the Preliminary Report of the Select \r\nCommittee, see ibid., 1878, Pt. V, p.48; f or the further Report of the Select Committee, see ibid., 1879, Pt. V, p. 106; for the \r\nthird Report of the Select Committee, see ibid., 1881, Pt. V. p.395; for Proceedings in Council, see ibid., 1877, Supplement, \r\np.1568; ibid., 1877, Supplement, p.1690; ibid, 1882, Supplement, pp.96 and 169. \r\n This Act was extended with effect from 1st January 1915, to the Province of Sind, see Bom. R & O. \r\n Ss. 54, 107 and 123 were extended from 6 th May, 1935, to all Municipalities in the Punjab and all notified areas declar ed \r\nand notified under s. 241 of the Punjab Municipal Act, 1911, see Punjab Gazette Extraordinary, 1925, p.27. \r\n S. 54, paras, 2 and 3, and ss. 59, 107 and 123 extend to every cantonment in the Province, see s.287 of the Cantonments \r\nAct, 1924 (II of 1924); and published in the Gazette of India, Part IV, dated 23.2.1924, pages 3-58. \r\n It was repealed as to Crown Grants by the Crown Grants Act, 1895 (XV of 1895), and amended in Sind by Sind Act 14 of \r\n1939, s.2. \r\n This Act shall be deemed to have been amended in its application to the Province of Sind, see Sind Act XIV of 1939. \r\n The Act has been extended, in respect of non -agricultural lands, to Baluchistan States Union and the Khairpur State by \r\nG.G.Os. 4 and 5 of 1953, as amended respectively. \r\n The Act was and shall be deemed to have been brought into force in Gwadur with effect from the 8 th September, 1958, by \r\nthe Gwadur (Application of Central Laws) Ordinance, 1960 (XXXVII of 1960), s.2. \r\n The Act, as in force in the North -West Frontier Province immediately before the commencement of N.W.F.P. Regulation \r\nNo.2 of 1974, has been applied to the Provincially Administered Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand \r\nProtected Area by N.W.F.P. Regulation No.2 of 1974, s.3. \r\n This Act was originally in the Federal ambit, however, the subject on which this law was enacted, has devolved to the \r\nprovinces by virtue of 18 th Amendment in the Constitution, hence it was adopted, with amendments, for the province of the \r\nPunjab by the Transfer of Property (Amendment) Act 201 1 (VIII of 2011) ; and published in the Gazette of Punjab \r\n(Extraordinary), dated 2.5.2011, pages 38631– 38632. \r\n2Substituted by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the Gazette of Punjab \r\n(Extraordinary), dated 2.5.2011, pages 38631– 38632, s.2. \r\n (5) Notwithstanding anything in this section, paragraphs 2 and 3 of section \r\n54, section 59, section 107 and secti on 123 shall not extend or be extended to any \r\ndistrict for the time being excluded from the operation of the Registration Act, 1908 \r\n(XVI of 1908).] \r\n2. Repeal of Acts.– In the territories to which this Act extends for the time being \r\nthe enactments specified in the schedule hereto annexed shall be repealed to the \r\nextent therein mentioned. But nothing herein contained shall be deemed to affect– \r\n Saving of certain enactments, incidents, rights, liabilities, &c. \r\n(a) the provisions of any enactment not hereby expressly repealed: \r\n(b) any terms or incidents of any contract or Constitution of property which \r\nare consistent with the provisions of this Act, and are allowed by the \r\nlaw for the time being in force: \r\n(c) any right or liability arising out of a legal relation constituted before this \r\nAct comes into force, or any relief in respect of any such right or \r\nliability: or, \r\n(d) save as provided by section fifty-seven, and Chapter IV of this Act, any \r\ntransfer by operation of law or by, or in execution of, a decree or or der \r\nof a Court of competent jurisdiction: \r\nand nothing in the second chapter of this Act shall be deemed to affect \r\nany rule of \r\n3\r\n[* * *] \r\n4\r\n[Muslim] \r\n5\r\n[* * *] law. \r\n3. Interpretation-clause.– In this Act, unless there is something repugnant in \r\nthe subject or context,– \r\n6\r\n[“Government” means Government of the Punjab;] \r\n “immovable property” does not include standing timber, growing crops or \r\ngrass; \r\n “instrument” means a non-testamentary instrument; \r\n \r\n7\r\n[„attested‟, in relation to an instrument, means \r\n8\r\n[and shall be deem ed always \r\nto have meant] attested by two or more witnesses each of whom has seen the \r\nexecutant sign or affix his mark to the instrument, or has seen some other \r\nperson sign the instrument in the presence and by the direction of the \r\nexecutant, or has receive d from the executant a personal acknowledgment o f \r\nhis signature or mark, or of the signature of such other person, and each of \r\nwhom has signed the instrument in the presence of the executant; but it shall \r\n \r\n3The word “Hindu”, repealed by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.3. \r\n4Substituted for the words “Muhammadan” by the Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in \r\nthe Gazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435-467, Article 2 and Table of General Adaptations. \r\n5The words “or Buddhist” repealed by the Transf er of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.3. \r\n6Inserted by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the G azette of Punjab \r\n(Extraordinary), dated 2.5.2011, pages 38631– 38632, s.3. \r\n7Inserted by s.2 of the Transfer of Property (Amendment) Act, 1926 (XXVII of 1926), received the assent of Governor General \r\non 25.3.1926, s.2. \r\n8Inserted by the Repealing and Amending Act, 1927 (X of 1927), dated 3.4.1927, s.2 and First Schedule. \r\nnot be necessary that more than one of such witness es shall have been \r\npresent at the same time, and no particular form of attestation shall be \r\nnecessary;] \r\n “registered” means registered in \r\n9\r\n[the Punjab] under the law\r\n10\r\n for the time \r\nbeing in force regulating the registration of documents: \r\n “attached to the earth” means– \r\n(a) rooted in the earth, as in the case of trees and shrubs; \r\n(b) imbedded in the earth, as in the case of walls or buildings; or \r\n(c) attached to what is so imbedded for the permanent beneficial \r\nenjoyment of that to which it is attached: \r\n11\r\n[“Actionable claim” means a claim to any debt, other than a debt \r\nsecured by mortgage of immovable property or by hypothecation or \r\npledge of movable property, or to any beneficial interest in movable \r\nproperty not in the possession, either actual or constructive, of the \r\nclaimant, which the Civil Courts recognize as affording grounds for \r\nrelief, whether such debt or beneficial interest be existent, accruing, \r\nconditional or contingent;] \r\n12\r\n[„a person is said to have notice‟ of a fact when he actually knows that \r\nfact, or when, but for wilful abstention from an inquiry or search which \r\nhe ought to have made, or gross negligence, he would have known it. \r\nExplanation I.– Where any transaction relating to immovable property is required by \r\nlaw to be and has been effected by a registered instrument, any person acquiring \r\nsuch property or any part of, or share or interest in, such property shall be deemed to \r\nhave notice of such instrument as from the date of registration \r\n13\r\n [****\r\n14\r\n[**] from the \r\nearliest date on which any memorandum of such registered instrument has been \r\nfiled by any Sub-Registrar within whose sub-district any part of the property which is \r\nbeing acquired, or of the property wherein a share or interest is being acquired, is \r\nsituated]: \r\n Provided that– \r\n(1) the instrument has been registered and its registration completed in the \r\nmanner prescribed by the Registration Act, 1908, and the rules made \r\nthereunder, \r\n \r\n9Substituted for the words “a Province” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2-5-2011, pages 38633 – 38634, s.3. \r\n10The Registration Act, 1908 (XVI of 1908); and published in the Gazette of India, Part IV, dated 19.12.1908, pages 231-246 \r\n11Inserted by the Transfer of Property Act, 1900 (II of 1900), assented by the Governor General on 2.2.1900, s.2. \r\n12This pa ragraph with the explanations and provisos was substituted for the original paragraph by the Transfer of Property \r\n(Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Dependencies, dated \r\n25.10.1929, pages 121-153, s.4 \r\n13The words “or if where the registered instrument has been registered under sub -section (2) of section 30 of the Indian \r\nRegistration Act, 1908 (XVI of 1908),” omitted by the Transfer of Property (Amendment) Act 2011 (VIII of 2011) ; and published \r\nin the Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.3. \r\n14Substituted for the words “if the instrument has been registered under sub -section (20 of section 30 of the Indian Registration \r\nAct, 1908, from the earlier date on which a memorandu m thereof has been filed by an Sub -Registrar under section 66 of that \r\nAct” by the Transfer of Property (Amendment) Act, 1930 (V of 1930), received assent of the Governor General on 15.3.1930, \r\ns.2. \r\n(2) the instrument \r\n15\r\n[or memorandum] has been duly entered or filed, as \r\nthe case may be, in books kept under section 51 of that Act, and \r\n(3) the particulars regarding the transaction to which instrument relates \r\nhave been correctly entered in the indexes kept under section 55 of \r\nthat Act. \r\nExplanation II .– Any person acquiring any immovable property or any share or \r\ninterest in any such property shall be deemed to have notice of the title, if any, of any \r\nperson who is for the time being in actual possession thereof. \r\nExplanation III .– A person shall be deemed to have had notice of any fact if his \r\nagent acquires notice thereof whilst acting on his behalf in the course of business to \r\nwhich that fact is material: \r\nProvided that, if the agent fraudulently conceals the fact, the principal shall not \r\nbe charged with notice thereof as against any person who was a party to or \r\notherwise cognizant of the fraud.] \r\n4. Enactments relating to contracts to be taken as part of Act IX of 1872 .– \r\nThe chapters and sections of this Act which relate to contracts shall be taken as part \r\nof the \r\n16\r\nIndian Contract Act 1872\r\n17\r\n. \r\n \r\n18\r\n[And sections 54 (paragraphs 2 and 3), 59, 107 and 123 shall be read as \r\nsupplemental to the Registration Act, \r\n19\r\n[1908 ].] \r\nCHAPTER II \r\nOF TRANSFERS OF PROPERTY BY ACT OF PARTIES \r\n(A).– Transfer of Property, whether moveable or immovable \r\n5. “Transfer of property” defined .– In the following s ections “Transfer of \r\nProperty” means and act by which a living person conveys property, in present or in \r\nfuture, to one or more other living persons, or to himself, \r\n20\r\n[or to himself] and one or \r\nmore other living persons, and “to transfer property” is to perform such act. \r\n \r\n21\r\n[In this section „living person‟ includes a company or association or body of \r\nindividuals, whether incorporated or not, but nothing herein contained shall affect any \r\nlaw for the time being in force relating to transfer of property to or by companies, \r\nassociations or bodies of individuals.] \r\n6. What may be transferred .– Property of any kind may be transferred, except \r\nas otherwise provided by this Act or by any other law for the time being in force: \r\n \r\n15Inserted by the Transfer of Property (Amendment) Act, 193 0 (V of 1930), received assent of the Governor General on \r\n15.3.1930, s.2. \r\n16Now “Pakistan” by the Adaptations of Central Acts and Ordinance Order, 1949 (G.G.O.4); and published in the Gazette of \r\nPakistan (Extraordinary), dated 25.3.1949, pages 223-283, Article 3 and Schedule. \r\n17IX of 1872. \r\n18Inserted by the Transfer of Property Act (1882), Amendment Act, 1885 (III of 1885), s.3 \r\n19Substituted for the figure “1877” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 5. \r\n20Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.6. \r\n21Ibid. \r\n(a) The chance of an heir-apparent succeeding to an estate, the chance of \r\nrelation obtaining a legacy on the death of a kinsman, or any other \r\nmere possibility of a like nature, cannot be transferred. \r\n(b) A mere right of re-entry for breach of a condition subsequent cannot be \r\ntransferred to any one e xcept the owner of the property affected \r\nthereby. \r\n(c) An easement cannot be transferred apart from the dominant heritage. \r\n(d) An interest in property restricted in its enjoyment to the owner \r\npersonally cannot be transferred by him. \r\n22\r\n[(dd) A right to future maintenance, in whatsoever manner arising , secured \r\nor determined, cannot be transferred.] \r\n(e) A mere right to sue \r\n23\r\n[* * *] cannot be transferred. \r\n(f) A public office cannot be transferred, nor can the salary of a public \r\nofficer, whether before or after it has become payable. \r\n(g) Stipends allowed to military \r\n24\r\n[, naval], \r\n25\r\n[air-force] and civil pensioners \r\nfor \r\n26\r\n[the Government] and political pensions cannot be transferred. \r\n(h) No transfer can be made (I) in so far as it is opposed to the nature of \r\nthe interest affected thereby, or (2) \r\n27\r\n[for an unlawful object or \r\nconsideration within the meaning of section 23 of the Contract Act, \r\n1872 (IX of 1872),] or (3) to a person legally disqualified to be \r\ntransferee. \r\n28 [(i) Nothing in this section shall be deemed to author ize a tenant having an \r\nuntransferable right of occupancy, the farmer of an estate in respect of \r\nwhich default has been made in paying revenue or the lessee of an \r\nestate under the management of a Court of Wards, to assign his \r\ninterest as such tenant, farmer or lessee.] \r\n7. Persons competent to transfer .– Every person competent to contract and \r\nentitled to transferable property, or authorized to dispose of transferable property not \r\nhis own, is competent to transfer such property either wholly or in part, and ei ther \r\nabsolutely or conditionally, in the circumstances, to the extent and in the manner \r\nallowed and prescribed by any law for the time being in force. \r\n \r\n22Clause (dd) inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 7. \r\n23The words “for compensation for a fraud or for harm illegally caused” repealed by the Transfer of Property Act, 1900 (II of \r\n1900), assented by the Governor General on 2.2.1900, s.3(i). \r\n24Inserted by the Amendment Act, 1934 (XXXV of 1934), assented on 8.9.1934, s.2 and Schedule \r\n25Inserted by the Repealing and Amending Act, 1927 (X of 1927), dated 3.4.1927, s.2 and First Schedule. \r\n26The original word “Government” was first substituted by the Government of India (Adaptation of Indian Laws) Order, 1937; \r\nand published in the Gazette of India (Extraordinary), dated 1 .4.1937, pages 75 -344, see Article 3 and Schedule, and then \r\namended for the words “the crown” by the Central Laws (Adaptation) Order, 1961 (P.O.1 of 1961); and published in the Gazette \r\nof Pakistan (Extraordinary), dated 24.1.1961, pages 102 -175, Article 2 and Table ( with effect from the 23 rd March, 1956), to \r\nread as above. \r\n27Substituted for the words “for an illegal purpose” by the Transfer of Property Act, 1900 (II of 1900), assented by the Govern or \r\nGeneral on 2.2.1900, s.3(ii). \r\n28Clause (i) inserted by the Transfer of Property Act, (1882), Amendment Act, 1885, (III of 1885), s.4. \r\n8. Operation of transfer .– Unless a different intention is expressed or \r\nnecessarily implied, a transfer o f property passes forthwith to the transferee all the \r\ninterest which the transferor is then capable of passing in the property, and in the \r\nlegal incidents thereof. \r\n Such incidents include, where the property is land, the easements annexed \r\nthereto, the rent s and profit thereof accruing after the transfer, and all things \r\nattached to the earth; \r\n and, where the property is machinery attached to the earth, the movable parts \r\nthereof; \r\n and, where the property is a house, the easements annexed thereto, the rent \r\nthereof accruing after the transfer, and the locks, keys, bars, doors, windows and all \r\nother things provided for permanent use therewith; \r\n and, where the property is a debt or other actionable claim, the securities \r\ntherefor (except where they are also for oth er debts or claims not transferred to the \r\ntransferee), but not arrears of interest accrued before the transfer; \r\n and, where the property is money or other property yielding income, the \r\ninterest or income thereof accruing after the transfer takes effect. \r\n9. Oral transfer.– A transfer of property may be made without writing in every \r\ncase in which a writing is not expressly required by law. \r\n10. Condition restraining alienation.– Where property is transferred subject to a \r\ncondition or limitation absolutely rest raining the transferred or any person claiming \r\nunder him from parting with or disposing of his interest in the property, the condition \r\nor limitation is void, except in the case of a lease where the condition is for the \r\nbenefit of the lessor or those claimi ng under him: provided that property may be \r\ntransferred to or for the benefit of a woman (not being a Hindu, \r\n29\r\n[Muslim] or \r\nBuddhist), so that she shall not have power during her marriage to transfer or charge \r\nthe same or her beneficial interest therein. \r\n11. Restriction repugnant to interest created .– Where, on a transfer of \r\nproperty, and interest therein is created absolutely in favour of any person, but the \r\nterms of the transfer direct that such interest shall be applied or enjoyed by him in a \r\nparticular manner, he shall be entitled to receive and dispose of such interest as if \r\nthere were no such direction. \r\n \r\n30\r\n[Where any such direction has been made in respect of one piece of \r\nimmovable property for the purpose of securing the beneficial enjoyment of another \r\npiece of such property, nothing in this section shall be deemed to affect any right \r\nwhich the transferor may have to enforce such direction or any remedy which he \r\nmay have in respect of a breach thereof.] \r\n12. Condition making interest determinable on insolv ency or attempted \r\nalienation.– Where property is transferred subject to a condition or limitation making \r\n \r\n29Substituted for the word “Muhammadan” by Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in the \r\nGazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435-467, Article 2 and Table of General Adaptations. \r\n30Substituted for the original second paragraph, by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 8. \r\nany interest therein, reserved or given to or for the benefit of any person, to cease on \r\nhis becoming insolvent or endeavouring to transfer or dispose of the same, such \r\ncondition or limitation is void. \r\n Nothing in this section applies to a condition in a lease for the benefit of the \r\nlessor or those claiming under him. \r\n13. Transfer for benefit of unborn person .– Where, on a transfer of property, \r\nan interest therein is created for the benefit of a person not in existence at the date \r\nof the transfer, subject to a prior interest created by the same transfer, the interest \r\ncreated for the benefit of such person shall not take effect, unless it extends to the \r\nwhole of the remaining interest of the transferor in the property. \r\nIllustration \r\nA transfers property or which he is the owner to B in trust for A and his \r\nintended wife successively for their lives, and, after the death of the survivor, for the \r\neldest son of the intended marriage for life, and after his death for A‟s second son. \r\nThe interest so created for the benefit of the eldest son does not take effect, because \r\nit does not extend to the whole of A‟s remaining interest in the property. \r\n14. Rule against perp etuity.– No transfer of property can operate to create an \r\ninterest which is to take effect after the life -time of one or more persons living at the \r\ndate of such transfer, and the minority of some person who shall be in existence at \r\nthe expiration of that p eriod, and to whom, if he attains full age, the interest created \r\nis to belong. \r\n15. Transfer to class some of whom come under sections 13 and 14.– If, on a \r\ntransfer of property, an interest therein is created for the benefit of a class of persons \r\nwith regar d to some of whom such interest fails by reason of any of the rules \r\ncontained in sections thirteen and fourteen , such interest fails \r\n31\r\n[in regard to those \r\npersons only and not in regard to the whole class]. \r\n32\r\n[16. Transfer to take effect on failure of prior interest.– Where, by reason of \r\nany of the rules contained in sections 13 and 14, an interest created for the benefit of \r\na person or of a class of persons fails in regard to such person or the whole of such \r\nclass, any interest created in the same transactio n and intended to take effect after \r\nor upon failure of such prior interest also fails. \r\n17. Direction for accumulation .– (1) Where the terms of a transfer of property \r\ndirect that the income arising from the property shall be accumulated either wholly or \r\nin part during a period longer than– \r\n (a) the life of the transferor, or \r\n (b) a period of eighteen years from the date of the transfer, \r\nsuch direction shall, save as hereinafter provided, be void to the extent to which the \r\nperiod during which the accumulatio n is directed exceeds the longer of the aforesaid \r\n \r\n31Substituted for the words “as regards the whole class” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.9. \r\n32Sections 16 to 18 were substituted ibid., s.10. \r\nperiods, and at the end of such last -mentioned period the property and the income \r\nthereof shall be disposed of as if the period during which the accumulation has been \r\ndirected to be made had elapsed. \r\n (2) This section shall not affect any direction for accumulation for the \r\npurpose of– \r\n(i) the payment of the debts of the transferor or any other person taking \r\nany interest under the transfer, or \r\n(ii) the provision of portions for children or remoter issue of th e transferor \r\nor of any other person taking any interest under the transfer, or \r\n(iii) the preservation or maintenance of the property transferred; \r\nand such direction may be made accordingly. \r\n18. Transfer in perpetuity for benefit of public.– The restrictions in sections 14, \r\n16 and 17 shall not apply in the case of a transfer of property for the benefit of the \r\npublic in the advancement of religion, knowledge, commerce, health, safety, or any \r\nother object beneficial to mankind.] \r\n19. Vested interest .– Where, on a transfer or property, an interest therein is \r\ncreated in favour of a person without specifying the time when it is to take effect, or \r\nin terms specifying that it is to take effect forthwith or on the happening of an event \r\nwhich must happen, such interest is vested, unless a contrary intention appears from \r\nthe terms of the transfer. \r\n A vested interest is not defeated by the death of the transferee before he \r\nobtains possession. \r\nExplanation.– An intention that an interest shall not be vested is not to be i nferred \r\nmerely from a provision whereby the enjoyment thereof is postponed, or whereby a \r\nprior interest in the same property is given or reserved to some other person, or \r\nwhereby income arising from the property is directed to be accumulated until the \r\ntime of enjoyment arrives, or from a provision that if a particular event shall happen \r\nthe interest shall pass to another person. \r\n20. When unborn person acquires vested interest on transfer for his \r\nbenefit.– Where, on a transfer of property, an interest there in is created for the \r\nbenefit of a person not then living, he acquires upon his birth, unless a contrary \r\nintention appear from the terms of the transfer, a vested interest, although he may \r\nnot be entitled to the enjoyment thereof immediately on his birth. \r\n21. Contingent interest.– Where, on a transfer of property, an interest therein is \r\ncreated in favour of a person to take effect only on the happening of a specified \r\nuncertain event, or if a specified uncertain event shall not happen, such person \r\nthereby ac quires a contingent interest in the property. Such interest becomes a \r\nvested interest, in the former case, on the happening of the event, in the latter, when \r\nthe happening of the event becomes impossible. \r\n Exception.– Where, under a transfer of property, a person becomes entitled to \r\nan interest therein upon attainting a particular age, and the transferor also gives to \r\nhim absolutely the income to arise from such interest before he reaches that ages, or \r\ndirects the income or so much thereof as may be necessa ry to be applied for his \r\nbenefit, such interest is not contingent. \r\n22. Transfer to members of a class who attain a particular age .– Where, on a \r\ntransfer of property, an interest therein is created in favour of such members only of \r\na class as shall attain a particular age, such interest does not vest in any member of \r\nthe class who has not attained that age. \r\n23. Transfer contingent on happening of specified uncertain event .– Where, \r\non a transfer of property, an interest therein is to accrue to a specified p erson if a \r\nspecified uncertain event shall happen, and no time is mentioned for the occurrence \r\nof that event, the interest fails unless such event happens before, or at the same \r\ntime as, the intermediate or precedent interest cease to exist. \r\n24. Transfer to such of certain persons as survive at some period not \r\nspecified.– Where, on a transfer of property, and interest therein is to accrue to \r\nsuch of certain persons as shall be surviving at some period, but the exact period is \r\nnot specified, the interest sh all go to such of them as shall be alive when the \r\nintermediate or precedent interest ceases to exist, unless a contrary intention \r\nappears from the terms of the transfer. \r\nIllustration \r\nA transfers property to B for life, and after his death to C and D, equal ly to be \r\ndivided between them, or to the survivor of them. C dies during the life of B. D \r\nsurvives B. At B‟s death the property passes to D. \r\n25. Conditional transfer .– An interest created on a transfer of property and \r\ndependent upon a condition fails if th e fulfilment of the condition is impossible, or is \r\nforbidden by law, or is of such a nature that, if permitted, it would defeat the \r\nprovisions of any law, or is fraudulent, or involves or implies injury to the person or \r\nproperty of another, or the Court regards it as immoral or opposed to public policy. \r\nIllustrations \r\n(a) A lets a farm to B on condition that he shall walk a hundred miles in an \r\nhour. The lease is void. \r\n(b) A gives Rs.500 to B on condition that he shall marry A‟s daughter C. At \r\nthe date of the transfer C was dead. The transfer is void. \r\n(c) A transfers Rs.500 to B on condition that she shall murder C. The \r\ntransfer is void. \r\n(d) A transfers Rs.500 to his niece C if she will desert her husband. The \r\ntransfer is void. \r\n26. Fulfilment of condition prec edent.– Where the terms of a transfer of \r\nproperty impose a condition to be fulfilled before a person can take an interest in the \r\nproperty, the condition shall be deemed to have been fulfilled if it has been \r\nsubstantially complied with. \r\nIllustrations \r\n(a) A transfers Rs.5,000 to B on condition that he shall marry with the \r\nconsent of C, D and E. E dies. B marries with the consent of C and D. B is deemed \r\nto have fulfilled the condition. \r\n(b) A transfers Rs.5,000 to B on condition that he shall marry with the \r\nconsent of C, D and E. B marries without the consent of C, D and E, but obtains their \r\nconsent after the marriage. B has not fulfilled the condition. \r\n27. Conditional transfer to one person coupled with transfer to another on \r\nfailure of prior disposition.– Where, on a transfer of property, an interest therein is \r\ncreated in favour of one person, and by the same transaction an ulterior disposition \r\nof the same interest is made in favour of another, if the prior disposition under the \r\ntransfer shall fail, the ulterio r disposition shall take effect upon the failure of the prior \r\ndisposition, although the failure may not have occurred in the manner contemplated \r\nby the transferor. \r\n But where the intention of the parties to the transaction is that the ulterior \r\ndisposition shall take effect only in the event of the prior disposition failing in a \r\nparticular manner, the ulterior disposition shall not take effect unless the prior \r\ndisposition fails in that manner. \r\nIllustrations \r\n(a) A transfers Rs.500 to B on condition that he sh all execute a certain \r\nlease within three months after A‟s death, and, if he should neglect to do so, to C. B \r\ndies in A‟s lifetime. The disposition in favour of C takes effect. \r\n(b) A transfers property to his wife; but, in case she should die in his \r\nlifetime, transfers to B that which he had transferred to her. A and his wife perish \r\ntogether, under circumstances which make it impossible to prove that she died \r\nbefore him. The disposition in favour of B does not take effect. \r\n28. Ulterior transfer conditional on happening or not happening of specified \r\nevent.– On a transfer of property an interest therein may be created to accrue to any \r\nperson with the condition superadded that in case a specified uncertain event shall \r\nhappen such interest shall pass to another p erson, or that in case a specified \r\nuncertain event shall not happen such interest shall pass to another person. In each \r\ncase the dispositions are subject to th e rules contained in sections ten, twelve, \r\ntwenty-one, twenty-two, twenty-three, twenty-four, twenty-five and twenty-seven. \r\n29. Fulfilment of condition subsequent .– An ulterior disposition of the kind \r\ncontemplated by the last preceding section cannot take effect unless the condition is \r\nstrictly fulfilled. \r\nIllustration \r\n A transfers Rs.500 to B, to be p aid to him on his attaining his majority or \r\nmarrying, with a proviso that, if B dies a minor or marries without C‟s consent, the \r\nRs.500 shall go to D. B marries when only 17 years of age, without C‟s consent. The \r\ntransfer to D takes effect. \r\n30. Prior disposition not affected by invalidity of ulterior disposition .– If the \r\nulterior disposition is not valid, the prior disposition is not affected by it. \r\nIllustration \r\n A transfers a farm to B for her life, and, if she does not desert her husband, to \r\nC. B is entitled to the farm during her life as if no condition had been inserted. \r\n31. Condition that transfer shall cease to have effect in case specified \r\nuncertain event happens or does not happen .– Subject to the provisions of \r\nsection 12, on a transfer of property a n interest therein may be created with the \r\ncondition superadded that it shall cease to exist in case a specified uncertain event \r\nshall happen, or in case a specified uncertain event shall not happen. \r\nIllustrations \r\n(a) A transfers a farm to B for his life, with a proviso that, in case B cuts \r\ndown a certain wood, the transfer shall cease to have any effect. B cuts down the \r\nwood. He loses his life-interest in the farm. \r\n(b) A transfers a farm to B, provided that, if B shall not go to England \r\nwithin three years after the date of transfer, his interest in the farm shall cease. B \r\ndoes not go to England within the term prescribed. His interest in the farm ceases. \r\n32. Such condition must not be invalid .– In order that a condition that an \r\ninterest shall cease to exist may be valid, it is necessary that the event to which it \r\nrelates be one which could legally constitute the condition of the creation of an \r\ninterest. \r\n33. Transfer conditional on performance of act, no time being specified for \r\nperformance.– Where, on a tran sfer of property, an interest therein is created \r\nsubject to a condition that the person taking it shall perform a certain act, but no time \r\nis specified for the performance of the act, the condition is broken when he renders \r\nimpossible, permanently or for an indefinite period, the performance of the act. \r\n34. Transfer conditional on performance of act, time being specified .– \r\nWhere an act is to be performed by a person either as a condition to be fulfilled \r\nbefore an interest created on a transfer of property i s enjoyed by him, or as a \r\ncondition on the non -fulfilment of which the interest is to pass from him to another \r\nperson, and a time is specified for the performance of the act, if such performance \r\nwithin the specified time is prevented by the fraud of a pers on who would be directly \r\nbenefited by non-fulfilment of the condition, such further time shall as against him be \r\nallowed for performing the act as shall be requisite to make up for the delay caused \r\nby such fraud. But if no time is specified for the perform ance of the act, then, if its \r\nperformance is by the fraud of a person interested in the non -fulfilment of the \r\ncondition rendered impossible or indefinitely postponed, the condition shall as \r\nagainst him be deemed to have been fulfilled. \r\nElection \r\n35. Election when necessary .– Where a person professes to transfer property \r\nwhich he has no right to transfer, and as part of the same transaction confers any \r\nbenefit on the owner of the property, such owner must elect either to confirm such \r\ntransfer or to dissent fr om it; and in the latter case he shall relinquish the benefit so \r\nconferred, and the benefit so relinquished shall revert to the transferor or the \r\nrepresentative as if it had not been disposed of, \r\nsubject nevertheless, \r\nwhere the transfer is gratuitous, and the transferor h as, before the election \r\ndied or otherwise become incapable of making a fresh transfer, \r\nand in all cases where the transfer is for consideration, \r\nto the charge of making good to the disappointed transferee the amount or \r\nvalue of the property attempted to be transferred to him. \r\nIllustration \r\n The farm of \r\n33\r\n[Diwanpur] is the property of C and worth Rs.800. A by an \r\ninstrument of gift professes to transfer it to B giving by the same instrument Rs.1,000 \r\nto C. C elects to retain the farm. He forfeits the gift of Rs.1,000. \r\n In the same case, A dies before the election. His representative must out of \r\nthe Rs.1,000 pay Rs.800 to B. \r\n The rule in the first paragraph of this section applies whether the transferor \r\ndoes or does not believe that which he professes to transfer to be his own. \r\n A person taking no benefit directly under a transaction, but deriving a benefit \r\nunder it indirectly, need not elect. \r\n A person who in his one capacity takes a benefit under the transaction may in \r\nanother dissent therefrom. \r\n Exception to the last preceding four rules .– Where a particular benefit is \r\nexpressed to be conferred on the owner of the property which the transferor \r\nprofesses to transfer, and such benefit is expressed to be in lieu of that property, if \r\nsuch owner claim the property, he must relinquish the particular benefit, but he is not \r\nbound to relinquish any other benefit conferred upon him by the same transaction. \r\n Acceptance of the benefit by the person on whom it is conferred constitutes \r\nan election by him to con firm the transfer, if he is aware of his duty to elect and of \r\nthose circumstances which would influence the judgment of a reasonable man in \r\nmaking an election, or if he waives enquiry into the circumstances. \r\n Such knowledge or waiver shall, in the absence of evidence to the contrary, \r\nbe presumed, if the person on whom the benefit has been conferred has enjoyed it \r\nfor two years without doing any act to express dissent. \r\n Such knowledge or waiver may be inferred from any act of his which renders \r\nit impossible to place the persons interested in the property professed to be \r\ntransferred in the same condition as if such act had not been done. \r\nIllustration \r\n A transfers to B an estate to which C is entitled, and as part of the same \r\ntransaction gives C a coalmine. C t akes possession of the mine and exhausts it. He \r\nhas thereby confirmed the transfer of the estate to B. \r\n If he does not within one year after the date of the transfer signify to the \r\ntransferor or his representatives his intention to confirm or to dissent fr om the \r\n \r\n33Substituted for the word “Ulipur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.4. Earlier substituted for the word “Sultanpur” by the \r\nCentral Laws (Statute Reform) Ordinance, 1960 (XXI of 1960) ; and published in the Gazette of Pakistan (Extraordinary), dated \r\n9.6.1960, pages 725-845, s. 3 and 2nd Schedule (with effect from the 14th October, 1955). \r\ntransfer, the transferor or his representatives may, upon the expiration of that period, \r\nrequire him to make his election; and, if he does not comply with such requisition \r\nwithin a reasonable time after he has received it, he shall be deemed to have elected \r\nto confirm the transfer. \r\n In case of disability, the election shall be postponed until the disability ceases, \r\nor until the election is made by some competent authority. \r\nApportionment \r\n36. Apportionment of periodical payments on determination of int erest of \r\nperson entitled .– In the absence of a contract or local usage to the contrary, all \r\nrents, annuities, pensions, dividends and other periodical payments in the nature of \r\nincome shall, upon the transfer of the interest of the person entitled to recei ve such \r\npayments, be deemed, as between the transferor and the transferee, to accrue due \r\nfrom day to day, and to be apportionable accordingly, but to be payable on the days \r\nappointed for the payment thereof. \r\n37. Apportionment of benefit of obligation on se verance.– When, in \r\nconsequence of a transfer, property is divided and held in several shares, and \r\nthereupon the benefit of any obligation relating to the property as a whole passes \r\nfrom one to several owners of the property, the corresponding duty shall, i n the \r\nabsence of a contract to the contrary amongst the owners, be performed in favour of \r\neach of such owners in proportion to the value of his share in the property, provided \r\nthat the duty can be severed and that the severance does not substantially incre ase \r\nthe burden of the obligation; but if the duty cannot be severed, or if the severance \r\nwould substantially increase the burden of the obligation, the duty shall be performed \r\nfor the benefit of such one of the several owners as they shall jointly designat e for \r\nthe purpose: \r\n Provided that no person on whom the burden of the obligation lies shall be \r\nanswerable for failure to discharge it in manner provided by this section, unless and \r\nuntil he has had reasonable notice of the severance. \r\n Nothing in this sect ion applies to leases for agricultural purposes unless and \r\nuntil the \r\n34\r\n[Government] by notification in the official Gazette so directs. \r\nIllustrations \r\n(a) A sells to B, C and D a house situate in a village and leased to E at an \r\nannual rent of Rs.30 and deliv ery of one fat sheep, B having provided half the \r\npurchase money and C and D one quarter each. E, having notice of this, must pay \r\nRs.15 to B, Rs.7-1/2 to C and Rs.7-1/2 to D, and must deliver the sheep according to \r\nthe joint direction of B, C and D. \r\n(b) In the same case, each house in the village being bound to provide ten \r\ndays‟ labour each year on a dyke to prevent inundation, E had agreed as a term of \r\nhis lease to perform this work for A. B, C and D severally require E to perform the ten \r\ndays‟ work due on account of the house of each. E is not bound to do more than ten \r\ndays‟ work in all, according to such direction as B, C and D may joint in giving. \r\n \r\n34Substituted for the words “Provincial Government” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and \r\npublished in the Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.5. \r\nB.– Transfer of Immovable Property \r\n38. Transfer by person authorised only under certain circumstances to \r\ntransfer.– Where any person, authoriz ed only under circumstances in their nature \r\nvariable to dispose of immovable property, transfers such property for consideration, \r\nalleging the existence of such circumstances, they shall, as between the transferee \r\non the o ne part and the transferor and other person (if any) affected by the transfer \r\non the other part be deemed to have existed, if the transferee, after using reasonable \r\ncare to ascertain the existence of such circumstances, has acted in good faith. \r\nIllustration \r\n A, a Hindu widow, whose husband has left collateral heirs, alleging that the \r\nproperty held by her as such is insufficient for her maintenance, agrees, for purposes \r\nneither religious nor charitable, to sell a field, part of such property, to B. B satisfi es \r\nhimself by reasonable enquiry that the income of the property is insufficient for A‟s \r\nmaintenance, and that the sale of the field is necessary, and, acting in good faith, \r\nbuys the field from A. As between B on the one part and A and the collateral heirs on \r\nthe other part, a necessity for the sale shall he deemed to have existed. \r\n39. Transfer where third person is entitled to maintenance .– Where a third \r\nperson has a right to receive maintenance, or a provision for advancement or \r\nmarriage, from the profits of immovable property, and such property is transferred \r\n35\r\n[* \r\n* *], the right may be enforced against the transferee, if he has notice \r\n36\r\n[thereof] or if \r\nthe transfer is gratuitous; but not against a transferee for consideration and without \r\nnotice of the right, nor against such property in his hands. \r\n \r\n37\r\n[* * * * * * * * * * * * ] \r\n40. Burden of obligation imposing restriction on use of land, or of obligation \r\nannexed to ownership but not amounting to interest or easement. – Where, for \r\nthe more beneficial enjoyme nt of his own immovable property, a third person has, \r\nindependently of any interest in the immovable property of another or of any \r\neasement thereon, a right to restrain the enjoyment \r\n38\r\n[in a particular manner of the \r\nlatter property], or \r\n where a third perso n is entitled to the benefit of an obligation arising out of \r\ncontract and annexed to the ownership of immovable property, but not amounting to \r\nan interest therein or easement thereon, such right or obligation may be enforced \r\nagainst a transferee with notic e thereof or a gratuitous transferee of the property \r\naffected thereby, but not against a transferee for consideration and without notice of \r\nthe right or obligation, nor against such property in his hands. \r\nIllustration \r\n \r\n35The words “with the intention of defeating such right ” repealed by the Transfer of Property (Amendment) Act, 1929 (XX of \r\n1929); and published in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.11. \r\n36Substituted ibid., for “of such intention”. \r\n37The illustration was repealed, ibid. \r\n38Substituted for the words “of the latter property or to compel its enjoyment in a particular manner” by the Transfer of Prope rty \r\n(Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Dependencies, dated \r\n25.10.1929, pages 121-153, s.12. \r\n A contracts to sell \r\n39\r\n[Diwanpur] to B. While the contract is still in force, he sells \r\n40\r\n[Diwanpur] to C, who has notice of the contract. B may enforce the contract against \r\nC to the same extent as against A. \r\n41. Transfer by ostensible owner .– Where, with the consent, express or \r\nimplied, of the p ersons interested in immovable property, a person is the ostensible \r\nowner of such property and transfers the same for consideration, the transfer shall \r\nnot be voidable on the ground that the transferor was not authorised to make it: \r\n Provided that the transferee, after taking reasonable care to ascertain that the \r\ntransferor had power to make the transfer, has acted in good faith. \r\n42. Transfer by person having authority to revoke former transfer .– Where a \r\nperson transfers any immovable property reserving power to revoke the transfer, and \r\nsubsequently transfers the property for consideration to another transferee, such \r\ntransfer operates in favour of such transferee (subject to any condition attached to \r\nthe exercise of the power) as a revocation of the former t ransfer to the extent of the \r\npower. \r\nIllustration \r\n A lets a house to B, and reserves power to revoke the lease if, in the opinion \r\nof a specified surveyor, B should make a use of it detrimental to its value. Afterwards \r\nA, thinking that such a use has been ma de, lets the house to C. This operates as a \r\nrevocation of B‟s lease subject to the opinion of the surveyor as to B‟s use of the \r\nhouse having been detrimental to its value. \r\n43. Transfer by unauthorized person who subsequently acquires interest in \r\nproperty t ransferred.– Where a person \r\n41\r\n[fraudulently or] erroneously represents \r\nthat he is authorized to transfer certain immovable property and professes to transfer \r\nsuch property for consideration, such transfer shall, at the option of the transferee, \r\noperate on a ny interest which the transferor may acquire in such property , at any \r\ntime during which the contract of transfer subsists. \r\n Noting in this section shall impair the right of transferees in good faith for \r\nconsideration without notice of the existence of the said option. \r\nIllustration \r\n A, a Hind u who has separated from his father B, sell to C three fields, X, Y \r\nand Z, representing that A is authoriz ed to transfer the same. Of these fields Z does \r\nnot belong to A, it having been retained by B on the partition; bu t on B‟s dying A as \r\nheir obtains Z. C, not having rescinded the contract of sale, may require A to deliver \r\nZ to him. \r\n44. Transfer by one co -owner.– Where one of two or more co -owners of \r\nimmovable property legally competent in that behalf transfers his shar e of such \r\n \r\n39Substituted for the word “Ulipur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.6. Earlier substituted for the word “Sultanpur” by the \r\nCentral Laws (Statute Reform) Ordinance, 1960 (XXI of 1960) ; and published in the Gazette of Pakistan (Extraordinary), dated \r\n9.6.1960, pages 725-845, s. 3 and 2nd Schedule (with effect from the 14th October, 1955). \r\n40Ibid. \r\n41Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.13. \r\nproperty or any interest therein, the transferee acquires, as to such share or interest, \r\nand so far as is necessary to give effect to the transfer, the transferor‟s right to joint \r\npossession or other common or part enjoyment of the property, and to enforce a \r\npartition of the same, but subject to the conditions and liabilities affecting, at the date \r\nof the transfer, the share or interest so transferred. \r\n Where the transferee of a share of a dwelling -house belonging to an \r\nundivided family is not a m ember of the family, nothing in this section shall be \r\ndeemed to entitle him to joint possession or other common or part enjoyment of the \r\nhouse. \r\n45. Joint transfer for consideration .– Where immovable property is transferred \r\nfor consideration to two or more persons, and such consideration is paid out of a \r\nfund belonging to them in common, they are, in the absence of a contract to the \r\ncontrary, respectively entitled to interests in such property identical, as nearly as may \r\nbe, with the interests to which they were respectively entitled in the fund; and where \r\nsuch consideration is paid out of separate funds belonging to them respectively, they \r\nare, in the absence of a contract to the contrary, respectively entitled to interest in \r\nsuch property in proportion to the shares of the consideration which they respectively \r\nadvanced. \r\n In the absence of evidence as to the interests in the fund to which they were \r\nrespectively entitled, or as to the shares which they respectively advanced, such \r\nperson shall be presumed to be equally interested in the property. \r\n46. Transfer for consideration by persons having distinct interests .– Where \r\nimmoveable properly is transferred for .consideration by persons having distinct \r\ninterest therein, the transferors are, in the absence of a con tract to the contrary, \r\nentitled to share in the consideration equally, where their interests in the property \r\nwere of equal value, and, where such interests were of unequal value, \r\nproportionately to the value of their respective interests. \r\nIllustrations \r\n(a) A, owning a moiety, and B and C , each a quarter share, of mauza \r\n42\r\n[Diwanpur], exchange an eighth share of that mauza for a quarter share of a mauza \r\n43\r\n[Pinanwal]. There being no agreement to the contrary, A is entitled to an eighth \r\nshare in \r\n44\r\n[Pinanwal], and B and C each to a sixteenth share in that mauza. \r\n(b) A, being entitled to a life -interest in mauza \r\n45\r\n[Chak Shadi] and B and C \r\nto the reversion, sell the mauza for Rs.1,000. A‟s life -interest is ascertained to be \r\nworth Rs.600, the reversion Rs.400. A is enti tled to receive Rs.600 out of the \r\npurchase-money, B and C to receive Rs.400. \r\n \r\n42Substituted for the word “Ulipur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.7. Earlier substituted for the word “Sultanpur” by the \r\nCentral Laws (Statute Reform) Ordinance, 1960 (XXI of 1960) ; and published in the Gazette o f Pakistan (Extraordinary), dated \r\n9.6.1960, pages 725-845, s. 3 and 2nd Schedule (with effect from the 14th October, 1955) \r\n43Ibid., for the word “Mithapukur”. Earlier substituted for the word “Lalpura” by the Central Laws (Statute Reform) Ordinance, \r\n1960 (XXI of 1960) ; and published in the Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725 -845, s. 3 and 2 nd \r\nSchedule (with effect from the 14th October, 1955) \r\n44Ibid. \r\n45Ibid., for the word “Jalkothi”. Earlier substituted for the word “Atrali” by the C entral Laws (Statute Reform) Ordinance, 1960 \r\n(XXI of 1960); and published in the Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725 -845, s. 3 and 2 nd Schedule \r\n(with effect from the 14th October, 1955). \r\n47. Transfer by co-owners of share in common property .– Where several co -\r\nowners of immovable property transfer a share therein without specifying that the \r\ntransfer is to take effe ct on any particular share or shares of the transferors, the \r\ntransfer, as among such transferors, takes effect on such shares equally where the \r\nshares were equal, and where they were unequal, proportionately to the extent of \r\nsuch shares. \r\nIllustration \r\n A, the owner of an eight -anna share, and B and C, each the owner of a four -\r\nanna share, in mauza \r\n46\r\n[Diwanpur], transfer a two -anna share in the mauza to D, \r\nwithout specifying from which of their several shares the transfer is made. To give \r\neffect to the transfer one-anna share is taken from the share of A, and half an anna \r\nshare from each of the shares of B and C. \r\n48. Priority of rights created by transfer .– Where a person purports to create \r\nby transfer at different times rights in or over the same immovable pro perty, and \r\nsuch rights cannot all exist or be exercised to their full extent together, each later \r\ncreated right shall, in the absence of a special contract or reservation binding the \r\nearlier transferees, be subject to the rights previously created. \r\n49. Transferee’s right under policy .– Where immovable property is transferred \r\nfor consideration, and such property or any part thereof is at the date of the transfer \r\ninsured against loss or damage by fire, the transferee, in case of such loss or \r\ndamage, may, in the absence of a contract to the contrary, require any money which \r\nthe transferor actually receives under the policy, or so much thereof as may be \r\nnecessary, to be applied in reinstating the property. \r\n50. Rent bona fide paid to holder under defective title .– No person shall be \r\nchargeable with any rents or profits of any immovable property, which he has in good \r\nfaith paid or delivered to any person of whom he in good faith held such property, \r\nnotwithstanding it may afterwards appear that the person to whom su ch payment or \r\ndelivery was made had no right to receive such rents or profits. \r\nIllustration \r\n A lets a field to B at a rent of Rs.50, and then transfers the field to C. B, \r\nhaving no notice of the transfer , in good faith pays the rent to A. B is not chargeab le \r\nwith the rent so paid. \r\n51. Improvements made by bona fide holders under defective titles .– When \r\nthe transferee of immovable property makes any improvement on the property, \r\nbelieving in good faith that he is absolutely entitled thereto, and he is subsequ ently \r\nevicted therefrom by any person having a better title, the transferee has a right to \r\nrequire the person causing the eviction either to have the value of the improvement \r\nestimated and paid or secured to the transferee, or to sell his interest in the p roperty \r\nto the transferee at the then market value thereof irrespective of the value of such \r\nimprovement. \r\n \r\n46Substituted for the word “Ulipur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631 – 38632, s.8. Earlier substituted for the words “Sultanpur” by \r\nthe Central Laws (Statute Reform) Ordinance, 1960 (X XI of 1960) ; and published in the Gazette of Pakistan (Extraordinary), \r\ndated 9.6.1960, pages 725-845, s. 3 and 2nd Schedule (with effect from the 14th October, 1955). \r\n The amount to be paid or secured in respect of such improvement shall be the \r\nestimated value thereof at the time of the eviction. \r\n When, under the circumstances aforesaid, the transferee has planted or sown \r\non the property crops which are growing when he is evicted therefrom, he is entitled \r\nto such crops and to free ingress and egress to gather and carry them. \r\n52. Transfer of property pending suit rela ting thereto .– During the \r\n47\r\n[pendency] in any Court having authority in \r\n48\r\n[Pakistan], or established beyond the \r\nlimits of \r\n49\r\n[Pakistan] by \r\n50\r\n[the \r\n51\r\n[Federal Government]] \r\n52\r\n[* * *], of \r\n53\r\n[any] suit or \r\nproceeding \r\n54\r\n[which is not collusive and] in which any right to i mmovable property is \r\ndirectly and Specifically in question, the property cannot be transferred or otherwise \r\ndealt with by any party to the suit or proceeding so as to affect the rights of any other \r\nparty thereto under decree or order which may be made ther ein, except under the \r\nauthority of the Court and on such terms as it may impose. \r\n55\r\n[Explanation.– For the purpose this section, the pendency of a suit or proceeding \r\nshall be deemed to commence from the date of the presentation of the plaint or the \r\ninstitution of the proceeding in a Court of competent jurisdiction, and to continue until \r\nthe suit or proceeding has been disposed of by a final decree or order and complete \r\nsatisfaction or discharge of such decree or order has been obtained, or has become \r\nunobtainable by reason of the expiration of any period of limitation prescribed for the \r\nexecution thereof by any law for the time being in force.] \r\n56\r\n[53. Fraudulent transfer.– (1) Every transfer of immov eable property made with \r\nintent to defeat or delay the credito rs of the transferor shall be voidable at the option \r\nof any creditor so defeated or delayed. \r\n Nothing in this sub -section shall impair the rights of a transferee in good faith \r\nand for consideration. \r\n Nothing in this sub -section shall affect any law for the time being in force \r\nrelating to insolvency. \r\n \r\n47Substituted for the words “active prosecution” by the Transfer of Property (Amendment) A ct, 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.14. \r\n48Substituted for the words “the Provinces and the Capital of the Federation” by the Central Laws (Statute Reform) Ordinance, \r\n1960 (XXI of 1960) ; and published in the Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725 -845, s. 3 and 2 nd \r\nSchedule (with effect from the 14 th October, 1955), which had been substituted for the words “British India” by the Adaptations \r\nof Ce ntral Acts and Ordinance Order, 1949 (G.G.O.4); and published in the Gazette of Pakistan (Extraordinary), dated \r\n25.3.1949,pages 223-283, Article 3(2) and4. \r\n49Ibid. \r\n50Substituted for the words “the Governor General in Council” by the Government of India (Adap tation of Indian Laws) Order, \r\n1937; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75-344, see Article 3 and Schedule I. \r\n51Substituted for the words “Central Government” by Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in \r\nthe Gazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435-467, Article 2 and Table of General Adaptations. \r\n52The words “or the Crown Representative” omitted by the Adaptations of Central Acts and Ordinance Order, 1949 (G.G.O.4); \r\nand published in the Gazette of Pakistan (Extraordinary), dated 25.3.1949,pages 223-283, Article 3 and Schedule. \r\n53Substituted for the words “a contentious” by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in \r\nthe Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.14. \r\n54Inserted ibid. \r\n55Ibid. \r\n56Substituted for the original section by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.15. \r\n A suit instituted by a creditor (which term includes a decree-holder whether he \r\nhas or has not applied for execution of his decree) to avoid a transfer on the ground \r\nthat it has been made with intent to defeat or delay the creditors of the transferor, \r\nshall be instituted on behalf of, or for the benefit of, all the creditors. \r\n (2) Every transfer of immovable property made without consideration with \r\nintent to defraud a subsequent transferee shall be voidable at t he option of such \r\ntransferee. \r\n For the purposes of this sub -section, no transfer made without consideration \r\nshall be deemed to have been made with intent to defraud by reason only that a \r\nsubsequent transfer for consideration was made.] \r\n57\r\n[53A. Part performance.– Where any person contracts to transfer for consideration \r\nany immovable property by writing signed by him or on his behalf from which the \r\nterms necessary to constitute the transfer can be ascertained with reasonable \r\ncertainty, \r\n and the transferee has, in part performance of the contract, taken possession \r\nof the property or any part thereof , or the transferee, being already in possession , \r\ncontinues in possession in part performance of the contract and has done some act \r\nin furtherance of the contract, \r\n and the transferee has performed or is willing to perform his part of the \r\ncontract, \r\n then, notwithstanding that the contract, though required to be registered, has \r\nnot been registered, or, where there is an instrument of transfer, that the transfer has \r\nnot been completed in the manner prescribed therefor by the law for the time being \r\nin force, the transferor or any person claiming under him shall be debarred from \r\nenforcing against the transferee and persons claiming under him any right in respect \r\nof the prop erty of which the transferee has taken or continued in possession, other \r\nthan a right expressly provided by the terms of the contract: \r\n Provided that nothing in this section shall affect the rights of a transferee for \r\nconsideration who has no notice of the contract or of the part performance thereof.] \r\nCHAPTER III \r\nOF SALES OF IMMOVEABLE PROPERTY \r\n54. “Sale” defined .– “Sale” is a transfer of ownership in exchange for a price \r\npaid or promised or part- paid and part-promised. \r\n \r\n58\r\nSale how made.– Such transfer, in the case of tangible immovable property \r\nof the value of one hundred rupees and upwards, or in the case of a reversion or \r\nother intangible thing, can be made only by a registered instrument. \r\n In the case of tangible immovable property, of a value less than one hundred \r\nrupees, such transfer may be made either by a registered instrument or by delivery \r\nof the property. \r\n \r\n57Inserted ibid., s.16. \r\n58As to limitation to the territorial operation of paragraphs 2 and 3 of s.54, see s.1 supra. These paragraphs extend to every \r\ncantonment in the Province, see s.287 of the Cantonments Act, 1924 (II of 1924); and published in the Gazette of India, Part IV, \r\ndated 23.2.1924, pages 3-58. \r\n Delivery of tangible immovable property takes place when the seller places \r\nthe buyer, or such person as he directs, in possession of the property. \r\n Contract for sale .– A contract for the sale of immovable property is a \r\ncontract that a sale of such property shall take place on terms settled between the \r\nparties. \r\n It does not, of itself, create any interest in or charge on such property. \r\n55. Rights and liabilities of buyer and seller .– In the absence of a contract to \r\nthe contrary, the buyer and the seller of immovable property respectively are subject \r\nto the liabilities, and have the rights, mentioned in the rules next following, or such of \r\nthem as are applicable to the property sold: \r\n (1) The seller is bound– \r\n(a) to disclose to buyer any material defect in the property \r\n59\r\n[or in the \r\nseller‟s title thereto] of which the seller is, and the buyer is not, aware, \r\nand which the buyer could not with ordinary care discover; \r\n(b) to produce to the buyer on his request for examination all documents of \r\ntitle relating to the property which are in the seller‟s possession or \r\npower; \r\n(c) to answer to the best of his information all relevant questions put to him \r\nby the buyer in respect to the property or the title thereto; \r\n(d) on payment or tender of the amount due in respect of the price, to \r\nexecute a proper conveyance of the property when the buyer tenders it \r\nto him for execution at a proper time and place; \r\n(e) between the date of the contract of sale and the delivery of the \r\nproperty, to take as much care of the property and all documents of title \r\nrelating thereto which are in his possession as an owner of ordinary \r\nprudence would take of such property and documents; \r\n(f) to give, on being so required, the buyer, or such person as he directs, \r\nsuch possession of the property as its nature admits; \r\n(g) to pay all public charges and rent accrued due in respect of the \r\nproperty up to the date of the sale, the interest on all incu mbrances on \r\nsuch property due on such date, and, except where the property is sold \r\nsubject to incumbrances, to discharge all incumbrances on the property \r\nthen existing. \r\n (2) The seller shall be deemed to contract with the buyer that the interest \r\nwhich the seller professes to transfer to the buyer subsists and that he has power to \r\ntransfer the same: \r\n Provided that, where the sale is made by a person in a fiduciary character, he \r\nshall be deemed to contract with the buyer that the seller has done no act whereb y \r\nthe property is incumbered or whereby he is hindered from transferring it. \r\n \r\n59Inserted by the Transfer of Property (Amendment) Act, 1929 (XXVI of 1929); and published in the Government Gazette, \r\nPunjab and its Dependencies, dated 25.10.1929, pages 121-153, s.17. \r\n The benefit of the contract mentioned in this rule shall be annexed to, and \r\nshall go with, the interest of the transferee as such, and may be enforced by every \r\nperson in whom tha t interest is for the whole or any part thereof from time to time \r\nvested. \r\n (3) Where the whole of purchase -money has been paid to the seller, he is \r\nalso bound to deliver to the buyer all documents of title relating to the property which \r\nare in the seller‟s possession or power: \r\nProvided that (a), where the seller retains any part of the property comprised \r\nin such documents, he is entitled to retain them all, and, ( b) where the whole \r\nof such property is sold to different buyers, the buyer of the lot of greate st \r\nvalue is entitled to such documents. But in case ( a) the seller, and in case ( b) \r\nthe buyer of the lot of greatest value, is bound, upon every reasonable \r\nrequest by the buyer, or by any of the other buyers, as the case may be, and \r\nat the cost of the pers on making the request, to produce the said documents \r\nand furnish such true copies thereof or extracts therefrom as he may require; \r\nand in the mean time, the seller, or the buyer of the lot of greatest value, as \r\nthe case may be, shall keep the said document s safe, uncancelled and \r\nundefaced, unless prevented from so doing by fi re or other inevitable \r\naccident; \r\n (4) The seller is entitled– \r\n(a) to the rents and profits of the property till the ownership thereof passes \r\nto the buyer; \r\n(b) where the ownership of the property has passed to the buyer before \r\npayment of the whole of the purchase -money, to a charge upon the \r\nproperty in the hands of the buyer \r\n60\r\n[any transferee without \r\nconsideration or any transferee with notice of the non-payment,] for the \r\namount of the pur chase-money, or any part thereof remaining unpaid, \r\nand for interest on such amount or part \r\n61\r\n[from the date on which \r\npossession has been delivered]. \r\n (5) The buyer is bound– \r\n(a) to disclose to the seller any fact as to the nature or extent of the seller‟s \r\ninterest in the property of which the buyer is aware but of which he has \r\nreason to believe that the seller is not aware, and which materially \r\nincreases the value of such interest; \r\n(b) to pay or tender, at the time and place of completing the sale, the \r\npurchase-money to the selle r or such person as he directs: provided \r\nthat, where the property is sold free from incumbrances, the buyer may \r\nretain, out of the purchase -money the amount of any incumbrances on \r\nthe property existing at the date of the sale, and sha ll pay the amount \r\nso retained to the persons entitled thereto; \r\n \r\n60Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.17. \r\n61Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.17. \r\n(c) where the ownership of the property has passed to the buyer, to bear \r\nany loss arising from the destruction, injury or decrease in value of the \r\nproperty not caused by the seller; \r\n(d) where t he ownership of the property has passed to the buyer, as \r\nbetween himself and seller, to pay all public charges and rent which \r\nmay become payable in respect of the property, the principal moneys \r\ndue on any incumbrances subject to which the property is sold, and the \r\ninterest-thereon afterwards accruing due. \r\n (6) The buyer is entitled– \r\n(a) where the ownership of the property has passed to him, to the benefit \r\nof any improvement in, or increase in value of, the property, and to the \r\nrents and profits thereof; \r\n(b) unless he has improperly declined to accept delivery of the property, to \r\na charge on the property, as against the seller and all persons claiming \r\nunder him, \r\n62\r\n[* * *] to the extent of the seller‟s interest in the property for \r\nthe amount of any purchase -money properly paid by the buyer in \r\nanticipation of the delivery and for interest on such amount; and, when \r\nhe properly declines to accept the delivery, also for the earnest (if any) \r\nand for the costs (if any) awarded to him of a suit to compel specific \r\nperformance of the contract or to obtain a decree for its rescission. \r\n An omission to make such disclosures as are mentioned in this section, \r\nparagraph (1), clause (a), and paragraph (5), clause (a), is fraudulent. \r\n63\r\n[56. Marshalling by subsequent purchaser .– If the owner of two or more \r\nproperties mortgages them to one person and then sells one or more of the \r\nproperties to another person, the buyer is, in the absence of a contract to the \r\ncontrary, entitled to have the mortgage -debt satisfied out of the property o r \r\nproperties not sold to him, so far as the same will extend, but not so as to prejudice \r\nthe rights of the mortgagee or persons claiming under him or of any other person \r\nwho has for consideration acquired an interest in any of the properties.] \r\nDischarge of Incumbrances on Sale \r\n57. Provision by Court for incumbrance s, and sale freed therefrom .– (a) \r\nWhere immov eable property subject to any incumbrance, whether immediately \r\npayable or not, is sold by the Court or in execution of a decree, or out of c ourt, the \r\nCourt may, if it thinks fit, on the application of any party to the sale, dire ct or allow \r\npayment into court, \r\n(1) in case of an annual or monthly sum charged on the property, or of a \r\ncapital sum charged on a determinable interest in the property ,– of \r\nsuch a mount as, when invested in securities of the \r\n64[62][Federal \r\n \r\n62The words “with notice of the payment” repealed ibid. \r\n63Substituted for the original section by the Transfer of Prope rty (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.18. \r\n64Substituted for the words “Central Government” by the Federal Adaptation of Laws Order 1975 (P.O. 4 of 197 5); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435 -467, Article 2 and Table of General \r\nAdaptations, which was previously substituted for the words “Government of India” by the Government of India (Adaptation of \r\nIndian Laws) Order, 1937; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75 -344, see Article 4 \r\nand Table of General Adaptations, to read as above. \r\nGovernment], the Court considers will be sufficient, by means of the \r\ninterest thereof, to keep down or otherwise provide for that charge, and \r\n(2) in any other case of a capital sum charged on the p roperty,– of the \r\namount sufficient to meet the incumbrance and any interest due \r\nthereon. \r\n But in either case there shall also be paid into Court such additional amount \r\nas the Court considers will be sufficient to meet the contingency of further costs, \r\nexpenses and interest , and any other contingency, except depreciation of \r\ninvestments, not exceeding one -tenth part of the original amount to be paid in, \r\nunless the Court for special reasons (which it shall record) thinks fit to require a \r\nlarger additional amount. \r\n (b) Thereupon the Court may, if it thinks fit, and after notice to the \r\nincumbrancer, unless the Court, for reasons to be recorded in writing, thinks fit to \r\ndispense with such notice, declare the property to be freed from the incumbrance, \r\nand make any order for conveyance, or vesting order, proper for giving effect to the \r\nsale, and give directions for the retention and investment of the money in court. \r\n (c) After notice served on the persons interested in or en titled to the \r\nmoney or fund in c ourt, the C ourt may direct payment or transfer thereof to the \r\npersons entitled to receive or give a discharge for the same, and generally may give \r\ndirections respecting the application or distribution of the capital or income thereof. \r\n (d) An appeal shall lie from an y declaration, order or direction under this \r\nsection as if the same were a decree. \r\n (e) In this section “Court” means (1) \r\n65\r\n[the Lahore High Court] in the \r\nexercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a \r\nDistrict Jud ge within the local limits of whose jurisdiction the property or any part \r\nthereof is situate, (3) any other Court which the \r\n66\r\n[Government] may, from time to \r\ntime, by notification in the official Gazette, declare to be competent to exercise the \r\njurisdiction conferred by this section. \r\nCHAPTER IV \r\nOF MORTGAGES OF IMMOVEABLE PROPERTY AND CHARGES \r\n58. (a) “Mortgage”, “mortgagor” and “mortgagee” defined.– A mortgage is \r\nthe transfer of an interest in specific immovable property for the purpose of securing \r\nthe payment of money advanced or to be advanced by way of loan, an existing or \r\nfuture debt, or the performance of an engagement which may give rise to a \r\npecuniary liability. \r\n The transferor is called a mortgagor, the transferee a mortgagee; the principal \r\nmoney and i nterest of which payment is secured for the time being are called the \r\nmortgage-money and the instrument (if any) by which the transfer is effected is \r\ncalled a mortgage-deed. \r\n \r\n65Substituted for the words “a High Court” by the Transfer of Property (Amendment) Act 2 011 (VIII of 2011); and published in \r\nthe Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.9. \r\n66Ibid., for the words “Provincial Government”. \r\n(b) Simple mortgage .– Where, without delivering possession of the \r\nmortgaged property, the mortgagor binds himself personally to pay the \r\nmortgage money, and agrees, expressly or impliedly, that, in the event \r\nof his failing to pay according to his contract, the mortgagee shall have \r\na right to cause the mortgaged property to be sold and th e proceeds of \r\nsale to be applied, so far as may be necessary, in payment of the \r\nmortgage-money, the transaction is called a simple mortgage and the \r\nmortgagee a simple mortgagee. \r\n(c) Mortgage by conditional sale.– Where the mortgagor ostensibly sells \r\nthe mortgaged property– \r\non condition that on default of payment of the mortgage money on a \r\ncertain date the sale shall become absolute, or \r\non condition not on such payment being made the sale shall become \r\nvoid, or \r\non condition that on such payment being made the buyer shall transfer \r\nthe property to the seller, the transaction is called a mortgage by \r\nconditional sale and the mortgagee a mortgagee by conditional sale. \r\n \r\n67\r\n[Provided that no such transaction shall be deemed to be a mortgage, unless \r\nthe condition is emb odied in the document which effects or purports to effect the \r\nsale]; \r\n(d) Usufructuary mortgage .– Where the mortgagor delivers possession \r\n68\r\n[or expressly or by implication binds himself to deliver possession] of \r\nthe mortgaged property to the mortgagee, and authorizes him to retain \r\nsuch possession until payment of the mortgage -money, and to receive \r\nthe rents and profits accruing from the property \r\n69\r\n[or any part of such \r\nrents and profits and to appropriate the same] in lieu of interest, or in \r\npayment of the mortgage-money, \r\n70\r\n[or] part in lieu of interest or partly in \r\npayment of the mortgage -money, the transaction is called a \r\nusufructuary mortgage and the mortgagee a usufructuary mortgagee. \r\n(e) English mortgage.– Where the mortgagor binds himself to repay the \r\nmortgage-money, on a certain date, and transfers the mortgaged \r\nproperty absolutely to the mortgagee, but subject to a proviso that he \r\nwill re -transfer it to the mortgagor upon payment of the mortgage -\r\nmoney as agreed, the transaction is called an English mortgage. \r\n(f) Mortgage by deposit of title -deeds.– \r\n71\r\n[Where a person [****] \r\n72\r\n[***] \r\ndelivers to a creditor or his agent documents of title to immovable \r\n \r\n67Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in t he Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.19. \r\n68Ibid. \r\n69Substituted ibid, for the words “and to appropriate them”. \r\n70Substituted ibid, for the word “and”. \r\n71Sub-sections (f) and (g) inserted, ibid. \r\n72The words and commas “in the town of Karachi, and in any other town which the Provincial Government concerned may, by \r\nnotification in the official Gazette, specify in this behalf,” had been omitted by the Finance Act 1986 (Federal Act I of 1986); and \r\nproperty, with intent to create a security thereon, the transaction is \r\ncalled a mortgage by deposit of title-deeds \r\n73\r\n[:] \r\n74\r\n[Provided that, where a mortgage by deposit of title deeds is to be \r\ncreated in favour of a banking company as defined in the Banking \r\nTribunals Ordinance, 1984 (LVIII of 1984), the same may also be \r\ncreated by an entry in the record of rights against the entry relating to \r\nsuch immovable property.] \r\n(g) Anomalous mortgage.– A mortgage which is not a simple mortgage, \r\na mortgage by conditional sale, a n usufructuary mortgage, an English \r\nmortgage or a mortgage by deposit of title -deeds within the meaning of \r\nthis section is called an anomalous mortgage.] \r\n75\r\n[59. Mortgage when to be by assurance.– Where the principal money secured is \r\none hundred rupees or upwards, a mortgage \r\n76\r\n[other than a mortgage by deposit of \r\ntitle-deeds] can be effected only by the registere d instrument signed by the \r\nmortgagor and attested by at least two witnesses. \r\n Where the principal money secured is less than one hundred rupees, a \r\nmortgage may be effected either by \r\n77\r\n[a registered instrument] signed and attested as \r\naforesaid, or (except in the case of a simple mortgage) by delivery of the property. \r\n \r\n78\r\n[* * * * * * * * * * * * ] \r\n79\r\n[59A. References to mortgagors and mortgagees to include persons deriving \r\ntitle from them.– Unless otherwise expressly provided, references in this Chapter to \r\nmortgagors and mortgagees shall be deemed to include references to persons \r\nderiving title from them respectively.] \r\nRights and Liabilities of Mortgagor \r\n60. Right of mortgagor to redeem .– At any time after the principal money has \r\nbecome \r\n80\r\n[due], the mortgagor ha s a right, on payment or tender, at a proper time \r\nand place, of the mortgage -money, to require the mortgage, (a) to deliver \r\n81\r\n[to the \r\n \r\npublished in the Gaze tte of Pakistan(Extraordinary), Part I, dated 29.6.1986, s.2, however, while adopting the Transfer of \r\nProperty Act 1882 through the Transfer of Property (Amendment) Act 2011 (Punjab Act VIII of 2011), section 10 of Act VIII of \r\n2011, inadvertently, suggeste d to substitute the words and comma “in the town of Karachi, and in any other town which the \r\nProvincial Government concerned” with the words “in any town which the Government”. \r\n73Substituted for the full -stop by the Finance Act 1986 (Federal Act I of 1986); and published in the Gazette of \r\nPakistan(Extraordinary), Part I, dated 29.6.1986, s.2 \r\n74Inserted ibid. \r\n75As to the limitation to the territorial operation of s.59, see s.1, supra. Section 59 extends to every cantonment in the Province \r\n– see s.287 of the Cantonment Act, 1924 (II of 1924); and published in the Gazette of India, Part IV, dated 23.2.1924, pages 3 -\r\n58. \r\n76Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.20. \r\n77Substituted for the words “an instrument” by the Transfer of Property (Amendment) Act, 1904 (VI of 1904); and published in \r\nthe Government Gazette Punjab and its Dependencies, dated 24.3.1904, page 9, s.3. \r\n78The third par agraph was omitted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.20. \r\n79Section 59A inserted ibid., s.21. \r\n80Substituted ibid, s.22, for the word “payable”. \r\n81Ibid, for “the mortgaged-deed, if any, to the mortgagor”. \r\nmortgagor the mortgage-deed and all documents relating to the mortgaged property \r\nwhich are in the possession or power of th e mortgagee], (b) where the mortgagee is \r\nin possession of the mortgaged property, to deliver possession thereof to mortgagor, \r\nand (c) at the cost of the mortgagor either to re -transfer the mortgaged property to \r\nhim or to such third person as he may direct, or to execute and (where the mortgage \r\nhas been effected by a registered instrument) to have registered an acknowledgment \r\nin writing that any right in derogation of his interest transferred to the mortgagee has \r\nbeen extinguished: \r\n Provided that the right c onferred by this section has not been extinguished by \r\nact of the parties or by \r\n82\r\n[decree] of a Court. \r\n The right conferred by this section is called a right to redeem and a suit to \r\nenforce it is called a suit for redemption. \r\n Nothing in this section shall b e deemed to render invalid any provision to the \r\neffect that, if the time fixed for payment of the principal money has been allowed to \r\npass or no such time has been fixed, the mortgagee shall be entitled to reasonable \r\nnotice before payment or tender of such money. \r\n Redemption of portion of mortgaged property .– Nothing in this section \r\nshall entitle a person interested in a share only of the mortgaged property to redeem \r\nhis own share only, on payment of a proportionate part of the amount remaining due \r\non the m ortgage, except \r\n83\r\n[only] where a mortgagee, or, if there are more \r\nmortgagees than one, all such mortgagees, has or have acquired, in whole or in part, \r\nthe share of a mortgagor. \r\n84\r\n[60A. Obligation to transf er to third party instead of re transference to \r\nmortgagor.– (1) Where a mortgagor is entitled to redemption, then, on the fulfilment \r\nof any conditions on the fulfilment of which he would be entitled to require a re -\r\ntransfer, he may require the mortgagee, instead of re -transferring the property, to \r\nassign the mortgage-debt and transfer the mortgaged property to such third person \r\nas the mortgagor may direct; and the mortgagee shall be bound to assign and \r\ntransfer accordingly. \r\n (2) The rights conferred by this section belong to and may be enforced by \r\nthe mortgago r or by any encumbrancer notwithstanding an intermediate \r\nencumbrance; but the requisition of any encumbrancer shall prevail over a \r\nrequisition of the mortgagor and, as between encumbrancers, the requisition of a \r\nprior encumbrancer shall prevail over that of a subsequent encumbrancer. \r\n (3) The provisions of this section do not apply in the case of a mortgagee \r\nwho is or has been in possession. \r\n60B. Right to inspection and production of documents .– A mortgagor, as long \r\nas his right of redemption subsists, shal l be entitled at all reasonable times at his \r\nrequest and at his own cost, and on payment of the mortgagee‟s costs and expenses \r\nin this behalf, to inspect and make copies or abstract, of, or extracts from, \r\n \r\n82Substituted for the word “order” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.22. \r\n83Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.22. \r\n84Ss. 60A and 60B inserted ibid, s.23. \r\ndocuments of title relating to the mortgaged proper ty which are in the custody or \r\npower of the mortgagee.] \r\n85\r\n[61. Right to redeem separately or simultaneously .– A mortgagor, who has \r\nexecuted two or more mortgages in favour of the same mortgagee shall, in the \r\nabsence of a contract to the contrary, when the p rincipal money of any two or more \r\nof the mortgages has become due, be entitled to redeem any one such mortgage \r\nseparately, or any two or more of such mortgages together.] \r\n62. Right of usufructuary mortgagor to recover possession .– In the case of a \r\nusufructuary mortgage, the mortgagor has right to recover possession of the \r\nproperty \r\n86\r\n[together with the mortgage -deed and all documents relating to the \r\nmortgaged property which are in the possession or power of the mortgagee]– \r\n(a) where the mortgagee is authorized to pay himself the mortgage -money \r\nfrom the rents and profits of the property,- When such money is paid; \r\n(b) where the mortgagee is authorized to pay himself from such rents and \r\nprofits \r\n87\r\n[or any part thereof a part only of the mortgage -money,] when \r\nthe term, if any, prescribed for the payment of the mortgage-money has \r\nexpired and the mortgagor pays or tenders to the mortgagee \r\n88\r\n[the \r\nmortgage-money or the balance thereof] or deposits it in Court as \r\nhereinafter provided. \r\n63. Accession to mortgaged property .– Where mortgaged property in \r\npossession of the mortgagee has, during the continuance of the mortgage, received \r\nany accession, the mortgagor, upon redemption, shall, in the absence of a contract \r\nto the contrary, be entitled as against the mortgagee to such accession. \r\n Accession acquired in virtue of transferred ownership .– Where such \r\naccession has been acquired at the expense of the mortgagee, and is capable of \r\nseparate possession or enjoyment without detriment to the principal property, the \r\nmortgagor desiring to take the accession must pay to the mortgagee the expense of \r\nacquiring it. If such separate possession or enjoyment is not possible, the accession \r\nmust be delivered with the property; the mortgagor being liable, in the case of an \r\nacquisition necessary to preserve the property from destruction, forfeiture or sale, or \r\nmade with his assent, to pay the proper cost thereof, as an addition to the principal \r\nmoney, \r\n89\r\n[with interest at the same rate as is payable on the principal, or, where no \r\nsuch rate is fixed, at the rate of nine per cent. per annum]. \r\n In the case last mentioned the profits, if any, arising from the accession shall \r\nbe credited to the mortgagor. \r\n \r\n85Substituted for the original section, by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.24. \r\n86Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.25. \r\n87Substituted ibid, for “the interest of the principal money”. \r\n88Ibid., for “the principal money”. \r\n89Substituted for the words “at the same rate of interest” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.26. \r\n Where the mortgage is usufructuary and the accession has been acquired at \r\nthe expense of the mortgag ee, the profits, if any, arising from the accession shall, in \r\nthe absence of a contract to the contrary, be set off against interest, if any, payable \r\non the money so expended. \r\n90\r\n[63A. Improvements to mortgaged property .– (1) Where mortgaged property in \r\npossession of the mortgagee has, during the continuance of the mortgage, been \r\nimproved, the mortgagor, upon redemption, shall, in the absence of a contract to the \r\ncontrary, be entitled to the improvement; and the mortgagor shall not, save only in \r\ncases provided for in sub-section (2), be liable to pay the cost thereof. \r\n (2) Where any such improvement was effected at the cost of the \r\nmortgagee and was necessary to preserve the property from destruction or \r\ndeterioration or was necessary to prevent the security fro m becoming insufficient, or \r\nwas made in compliance with the lawful order of any public servant or public \r\nauthority, the mortgagor shall, in the absence of a contract to the contrary, be liable \r\nto pay the proper cost thereof as an addition to the principal money with interest at \r\nthe same rate as is payable on the principal, or, where no such rate is fixed, at the \r\nrate of nine per cent . per annum, and the profits, if any, accruing by reason of the \r\nimprovement shall be credited to the mortgagor.] \r\n64. Renewal of mortgaged lease.– Where the mortgaged property is a lease \r\n91\r\n[* \r\n* *], and the mortgagee obtains a renewal of the lease, the mortgagor, upon \r\nredemption, shall, in the absence of a contract by him to the contrary, have the \r\nbenefit of the new lease. \r\n65. Implied contracts by mortgagor .– In the absence of a contract to the \r\ncontrary, the mortgagor shall be deemed to contract with the mortgagee, \r\n(a) that the interest which the mortgagor professes to transfer to the \r\nmortgagee subsists, and the mortgagor has power t o transfer the \r\nsame; \r\n(b) that the mortgagor will defend, or if the mortgagee be in the possession \r\nof the mortgaged property, enable him to defend, the mortgagor‟s title \r\nthereto; \r\n(c) that the mortgagor will, so long as the mortgagee is not in possession \r\nof the mortgaged property, pay all, public charges accruing due in \r\nrespect of the property; \r\n(d) and, where the mortgaged property is a lease \r\n92\r\n[* * *], that the rent \r\npayable under the lease, the conditions contained therein, and the \r\ncontracts binding on the le ssee have been paid, performed and \r\nobserved down to the commencement of the mortgage: and that the \r\nmortgagor will, so long as the security exists and the mortgagee is not \r\nin possession of the mortgaged property, pay the rent reserved by the \r\nlease, or, if t he lease be renewed, the renewed lease, perform the \r\n \r\n90Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.27. \r\n91The words “for a term of years” omitted ibid., s.28 \r\n92The words “for a term of years” omitted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.29. \r\nconditions contained therein and observe the contracts binding on \r\nlessee, and indemnify the mortgagee against all claims sustained by \r\nreason of the non -payment of the said rent or the non -performance or \r\nnon-observance of the said conditions and contracts; \r\n(e) and, where the mortgage is a second or subsequent incumbrance on \r\nthe property, that the mortgagor will pay the interest from time to time \r\naccruing due on each prior incumbrance as and when it becomes due, \r\nand will at the proper time discharge the principal money due on such \r\nprior incumbrance. \r\n93\r\n[* * * * * * * * * * * * ] \r\n The benefit of the contracts mentioned in this section shall be annexed to and \r\nshall go with the interest of the mortgagee as such, and may be enforced by every \r\nperson in whom that interest is for the whole or any part thereof from time to time \r\nvested. \r\n94\r\n[65A. Mortgagor’s power to lease .– (1) Subject to the provisions of sub -section \r\n(2), a mortgagor, while lawfully in possession of th e mortgaged property, shall have \r\npower to make leases thereof which shall be binding on the mortgagee. \r\n (2)(a) Every such lease shall be such as would be made in the ordinary \r\ncourse of management of the property concerned, and in accordance with any local \r\nlaw, custom or usage. \r\n(b) Every such lease shall reserve the best rent that can reasonably be \r\nobtained, and no premium shall be paid or promised and no rent shall \r\nbe payable in advance. \r\n(c) No such lease shall contain a covenant for renewal. \r\n(d) Every such lease shall take effect from a date not later than six months \r\nfrom the date on which it is made. \r\n(e) In the case of a lease of buildings, whether leased with or without the \r\nland on which they stand, the duration of the lease shall in no case \r\nexceed three years, and the lease shall contain a covenant for \r\npayment of the rent and a condition of re -entry on the rent not being \r\npaid within a time therein specified. \r\n (3) The provisions of sub -section (1) apply only if and as far as a contrary \r\nintention is not exp ressed in the mortgage -deed; and the provisions of sub -section \r\n(2) may be varied or extended by the mortgage -deed and, as so varied and \r\nextended, shall, as far as may be, operate in like manner and with all like incidents, \r\neffects and consequences, as if s uch variations or extensions were contained in that \r\nsub-section.] \r\n66. Waste by mortgagor in possession .– A mortgagor in possession of the \r\nmortgaged property is not liable to the mortgagee for allowing the property to \r\ndeteriorate; but he must not commit any act which is destructive or permanently \r\n \r\n93Certain words were omitted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 29. \r\n94Inserted ibid. \r\ninjurious thereto, if the security is insufficient or will be rendered insufficient by such \r\nact. \r\nExplanation.– A security is insufficient within the meaning of this section unless the \r\nvalue of the mortgaged property exceeds by one -third, or, if consisting of buildings, \r\nexceeds by one-half, the amount for the time being due on the mortgage. \r\nRights and Liabilities of Mortgagee \r\n67. Right to foreclosure or sale .– In the absence of a contract to contrary, the \r\nmortgagee ha s, at any time after the mortgage -money has become \r\n95\r\n[due] to him, \r\nand before a decree has been made for the redemption of the mortgaged property, \r\nor the mortgage -money has been paid or deposited as hereinafter provided, a right \r\nto obtain from the Court \r\n96\r\n[a decree] that the mortgagor shall be absolutely debarred \r\nof his right to redeem the property, or \r\n97\r\n[a decree] that the property be sold. \r\n A suit to obtain \r\n98\r\n[a decree] that a mortgagor shall be absolutely debarred of \r\nhis right to redeem the mortgaged property is called a suit for foreclosure. \r\n Nothing in this section shall be deemed– \r\n99\r\n[(a) to authoris e any mortgagee , other than a mortgagee by conditional \r\nsale or a mortgagee under an anomalous mortgage by the terms of \r\nwhich he is entitled to foreclose, to inst itute a suit for foreclosure, or an \r\nusufructuary mortgagee as such or mortgagee by conditional sale as \r\nsuch to institute a suit for sale; or] \r\n(b) to authorize a mortgagor who holds the mortgagee‟s rights as his \r\ntrustee or legal representative, and who may sue for a sale of the \r\nproperty, to institute a suit for foreclosure; or \r\n(c) to authorize the mortgagee of a railway, canal or other work in the \r\nmaintenance of which the public are interested, to institute a suit for \r\nforeclosure or sale; or \r\n(d) to authorize a person interested in part only of the mortgage -money to \r\ninstitute a suit relating only to a corresponding part of the mortgaged \r\nproperty, unless the mortgagees have, with the consent of the \r\nmortgagor, severed their interests under the mortgage. \r\n100\r\n[67A. Mortgagee when bound to bring one suit on several mortgages .– A \r\nmortgagee who holds two or more mortgages executed by the same mortgagor in \r\nrespect of each of which he has a right to obtain the same kind of decree under \r\nsection 67, and who sues to obtain su ch decree on anyone of the mortgages, shall, \r\n \r\n95Substituted for the word “payable” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.31. \r\n96Substituted ibid, for the words “an order”. \r\n97Ibid. \r\n98Ibid. \r\n99Substituted for the original clause by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.31. \r\n100Section 67A inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.32. \r\nin the absence of a contract to the contrary, be bound to sue on all the mortgages in \r\nrespect of which the mortgage-money has become due.] \r\n101\r\n[68. Right to sue for mortgage-money.– (1) The mortgagee has a right to sue for \r\nthe mortgage-money in the following cases and no others, namely:– \r\n(a) where the mortgagor binds himself to repay the same; \r\n(b) where, by any cause other than the wrongful act or default of the \r\nmortgagor or mortgagee, the mortgaged property is who lly or partially \r\ndestroyed or the security is rendered insufficient within the meaning of \r\nsection 66, and the mortgagee has given the mortgagor a reasonable \r\nopportunity of providing further security enough to render the whole \r\nsecurity sufficient, and the mortgagor has failed to do so; \r\n(c) where the mortgagee is deprived of the whole or part of his security by \r\nor in consequence of the wrongful act or default of the mortgagor; \r\n(d) where, the mortgagee being entitled to possession of the mortgaged \r\nproperty, the mortgagor fails to deliver the same to him, or to secure \r\nthe possession thereof to him without disturbance by the mortgagor or \r\nany person claiming under a title superior to that of the mortgagor: \r\nProvided that, in the case referred to in clause (a), a tr ansferee from \r\nthe mortgagor or from his legal representative shall not be liable to be \r\nsued for the mortgage-money. \r\n (2) Where a suit is brought under clause (a) or clause (b) of sub -section \r\n(1), the Court may, at its discretion, stay the suit and all proc eedings therein, \r\nnotwithstanding any contract to the contrary, until the mortgagee has exhausted all \r\nhis available remedies against the mortgaged property or what remains of it, unless \r\nthe mortgagee abandons his security and, if necessary, re -transfers the mortgaged \r\nproperty.] \r\n69. Power of sale when valid .– \r\n102\r\n[(1)] \r\n103\r\n[\r\n104\r\n[A] mortgagee, or any person acting on \r\nhis behalf, shall, subject to the provisions of this section, have power to sell or concur \r\nin selling the mortgaged property, or any part thereof, in def ault of payment of the \r\nmortgage-money, without the intervention of the Court, in the following cases and in \r\nno others, namely:–] \r\n(a) where the mortgage is an English mortgage, and neither the mortgagor \r\nnor the mortgagee is a Hindu, \r\n105\r\n[Muslim] or Buddhist \r\n106\r\n[or a member of \r\n \r\n101Substituted for the original section, by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.33. \r\n102Renumbered as sub -section (1) by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.34. \r\n103Substituted for the words “A power conferred by the……..,is valid in the following ca ses and in no others, namely: -“ by the \r\nTransfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its \r\nDependencies, dated 25.10.1929, pages 121-153, s.34. \r\n104Substituted for the words “Notwithstanding anythin g contained in the Trustees and Mortgagees Powers Act, 1866, a” by the \r\nFederal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of Pakistan \r\n(Extraordinary), dated 8.7.1981, pages 345-475, s. 3 and 2nd Schedule, at serial no.25. \r\n105Substituted for the word “Muhammadan” by Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in the \r\nGazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435 -467, Article 2 and Table of General Adaptations , Article 2 and \r\nTable. \r\n106Inserted by the Transfer of Property Act (1882) Amendment Act 1885 (III of 1885), s. 5. \r\nany other race, sect, tribe or class from time to time specified in this \r\nbehalf by \r\n107\r\n[the \r\n108\r\n[Government]], in the \r\n109\r\n[official Gazette]]; \r\n(b) \r\n110\r\n[where the mortgagee is the Federal Government or a Provincial \r\nGovernment or a banking company as defined in the Banking Tribunals \r\nOrdinance, 1984 (LVIII of 1984).] \r\n(c) where \r\n111\r\n[a power of sale without the intervention of the Court is \r\nexpressly conferred on the mortgagee by the mortgage -deed, and] the \r\nmortgaged property or any part thereof \r\n112\r\n[was, on the dat e of the \r\nexecution of the mortgage -deed,] situate within \r\n113\r\n[any town or area \r\nwhich the Government] may, by notification in the \r\n114\r\n[official Gazette], \r\nspecify in this behalf. \r\n \r\n115\r\n[*]\r\n116\r\n[(2)] \r\n117\r\n[A power under sub -section (1) shall not] be exercised unless and \r\nuntil– \r\n118\r\n[(a)] notice in writing requiring payment of the principal money has been \r\nserved on the mortgagor, or on one of several mortgagors, and default \r\nhas been made in payment of the principal money, or of part thereof, \r\nfor three months after such service; or \r\n119\r\n[(b)] some interest under the mortgage amounting at least to five hundred \r\nrupees is in arrear and unpaid for three months after becoming due \r\n120\r\n[:] \r\n \r\n107Substituted for the words “the Local Government with the previous sanction of the Governor General in Council” by the \r\nGovernment of India (Adaptation of Indian Laws) Order, 1937; and published in the Gazette of India (Extraordinary), dated \r\n1.4.1937, pages 75-344, see Article 3 and Schedule I. \r\n108Substituted for the words “Provincial Government” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011 ); and \r\npublished in the Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.11. \r\n109Substituted for the words “local official Gazette” by the Government of India (Adaptation of Indian Laws) Order, 1937; and \r\npublished in the Gazette of Ind ia (Extraordinary), dated 1.4.1937, pages 75 -344 see Article 4 and Table of General \r\nAdaptations. \r\n110Substituted by the Finance Act, 1986 (Federal Act I of 1986); and published in the Gazette of Pakistan(Extraordinary), Part I , \r\ndated 29.6.1986, s.2 \r\n111Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 34. \r\n112Substituted ibid., for “is”. \r\n113Substituted for the words “the town of Karachi, or in any other town or area which the Provincial Government” by the Transfer \r\nof Property (Amendment) Act 2011 (VIII of 2011) ; and published in the Gazette of Punjab (Extraordinary), dated 2.5.2011, \r\npages 38631– 38632, s.11. \r\n114Substituted for the words “Gazett e of India” by the Government of India (Adaptation of Indian Laws) Order, 1937; and \r\npublished in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75 -344, see Article 4 and Table of General \r\nAdaptations. \r\n115The word “But” repealed by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 34. \r\n116This para was numbered as sub-section (2), ibid. \r\n117Substituted for the words “no such power shall” by the Transfer of Property (Amendment) Act 1966 (V of 1966); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 1.4.1966, page 192, s. 2. \r\n118This clause was lettered (a), by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and publishe d in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.34. \r\n119This clause was lettered (b) by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.34. \r\n120Substituted for the full-stop by the Transfer of Property (Amendment) Act 1966 (V of 1966); and published in the Gazette of \r\nPakistan (Extraordinary), dated 1.4.1966, page 192, s. 2. \r\n \r\n121\r\n[Provided that the power of a scheduled bank under clause (b) of sub-\r\nsection (1) shall further be subject to such conditions as may be prescribed in \r\nthis behalf by notification in the official Gazette by the \r\n122\r\n[Federal Government] \r\nin consultation with the State Bank of Pakistan. \r\n \r\n123\r\n[(3)] When a sale has been made in professed exercise of such a power, \r\nthe title of the purchaser shall not be impeachable on the ground that no case had \r\narisen to authorise the sale, or that due notice was not given, or that the power was \r\notherwise improperly or irregularly exercised; but any person damnified by an \r\nunauthorised or improper or irregular exercise of the power shall have his remedy in \r\ndamages against the person exercising the power. \r\n \r\n124\r\n[(4)] The money which is received by the mortgagee, arising from the sale, \r\nafter discharge of prior incumbrances, if any, to which the sale i s not made subject, \r\nor after payment into Court under section 57 of a sum to meet any prior \r\nincumbrance, shall, in the absence of a contract to the contrary, be held by him in \r\ntrust to be applied by him, first, in payment of all costs, charges and expenses \r\nproperly incurred by him as incident to the sale or any attempted sale; and, secondly, \r\nin discharge of the mortgage -money and costs and other money, if any, due under \r\nthe mortgage; and the residue of the money so received shall be paid to the person \r\nentitled to the mortgaged property, or authorized to give receipts for the proceeds of \r\nthe sale thereof. \r\n125\r\n[* * * * * * * * * * * * * ] \r\n126\r\n[* * * * * * * * * * * * * ] \r\n127\r\n[69A. Appointment of receiver .– (1) A mortgagee having the right to exercise a \r\npower of sale under section 69 shall, subject to the provisions of sub -section (2), be \r\nentitled to appoint, by writing signed by him or on his behalf, a receiver of the income \r\nof the mortgaged property or any part thereof. \r\n (2) Any person who has been named in the mor tgage-deed and is willing \r\nand able to act as receiver may be appointed by the mortgagee. \r\nIf no person has been so named, or if all persons named are unable or \r\nunwilling to act, or are dead, the mortgagee may appoint any person to whose \r\nappointment the mort gagor agrees; failing such agreement, the mortgagee shall be \r\nentitled to apply to the Court for the appointment of a receiver, and any person \r\nappointed by the Court shall be deemed to have been duly appointed by the \r\nmortgagee. \r\n \r\n121Added ibid. \r\n122Substituted for the words “Central Government” by Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in \r\nthe Gazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435-467, Article 2 and Table of General Adaptations. \r\n123This part was numbered as sub-section (3), by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published \r\nin the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 34. \r\n124This part was numbered as sub-section (4), by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published \r\nin the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 34. \r\n125Sub-section (5) which was previously substituted ibid., for the original fifth paragraph, was omitted by the Federal Laws \r\n(Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the Gazette of Pakistan (Extraordinary), dated \r\n8.7.1981, pages 345-475, s. 3 and 2nd Schedule, at serial no.25. \r\n126The last paragraph of the section was repealed by th e Transfer of Property (Amendment) Act 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.34. \r\n127Section 69 A inserted ibid., s. 35. \r\n A receiver may at any time b e removed by writing signed by or on behalf of \r\nthe mortgagee and the mortgagor, or by the Court on application made by either \r\nparty and on due cause shown. \r\n A vacancy in the office of receiver may be filled in accordance with the \r\nprovisions of this sub-section. \r\n (3) A receiver appointed under the powers conferred by this section shall \r\nbe deemed to be the agent of the mortgagor; and the mortgagor shall be solely \r\nresponsible for the receiver‟s acts or defaults, unless the mortgage -deed otherwise \r\nprovides or u nless such acts or defaults are due to the improper intervention of the \r\nmortgagee. \r\n (4) The receiver shall-have power to demand and recover all the income of \r\nwhich he is appointed receiver, by suit, execution or otherwise, in the name either of \r\nthe mortgag or or of the mortgagee to the full extent of the interest which the \r\nmortgagor could dispose of, and to give valid receipts accordingly for the same, and \r\nto exercise any powers which may have been delegated to him by the mortgagee in \r\naccordance with the provisions of this section. \r\n (5) A person paying money to the receiver shall not be concerned to \r\ninquire if the appointment of the receiver was valid or not. \r\n (6) The receiver shall be entitled to retain out of any money received by \r\nhim, for his remuneration, and in satisfaction of all costs, charges and expenses \r\nincurred by him as receiver, a commission at such rate not exceeding five per cent. \r\non the gross amount of all money received as is specified in his appointment, and, if \r\nno rate is so specified , then at the rate of five per cent. on that gross amount, or at \r\nsuch other rate as the Court thinks fit to allow, on application made by him for th at \r\npurpose. \r\n (7) The receiver shall, if so directed in writing by the mortgagee, insure to \r\nthe extent, if any, to w hich the mortgagee might have insured, and keep insured \r\nagainst loss or damage by fire, out of the money received by him, the mortgaged \r\nproperty or any part thereof being of an insurable nature. \r\n (8) Subject to the provisions of this Act as to the applicat ion of insurance \r\nmoney, the receiver shall apply all money received by him as follows, namely:– \r\n(i) in discharge of all rents, taxes, land revenue, rates and outgoings \r\nwhatever affecting the mortgaged property; \r\n(ii) in keeping down all annual sums or other payments, and the interest \r\non all principal sums, having priority to the mortgage in right whereof \r\nhe is receiver; \r\n(iii) in payment of his commission, and of the premiums on fire, life or other \r\ninsurances, if any, properly payable under the mortgage -deed or under \r\nthis Act, and the cost of executing necessary or proper repairs directed \r\nin writing by the mortgagee; \r\n(iv) in payment of the interest falling due under the mortgage; \r\n(v) in or towards discharge of the principal money, if so directed in writing \r\nby the mortgagee; \r\nand shall pay the residue, if any, of the money received by him to the \r\nperson who, but for the possession of the receiver, would have been \r\nentitled to receive the income of which he is appointed receiver, or who \r\nis otherwise entitled to the mortgaged property. \r\n (9) The provisions of sub -section (1) apply only if and as far as contrary \r\nintention is not expressed in the mortgage -deed; and the provisions of sub -sections \r\n(3) to (8) inclusive may be varied or extended by the mortgage -deed, and, as so \r\nvaried or extended, shall, as far as may be, operate in like manner and with all the \r\nlike incidents, effects and consequences, as if such variations or extensions were \r\ncontained in the said sub-sections. \r\n (10) Application may be made, without the insti tution of a suit, to the Court \r\nfor its opinion, advice or direction on any present question respecting the \r\nmanagement or administration of the mortgaged property, other than questions of \r\ndifficulty or importance not proper in the opinion of the C +ourt for summary disposal. \r\nA copy of such application shall be served upon, and the hearing thereof may be \r\nattended by, such of the persons interested in the application as the Court may think \r\nfit. \r\n The costs of every application under this sub -section shall be in the discretion \r\nof the Court. \r\n (11) In this section, “the Court” means the Court which would have \r\njurisdiction in a suit to enforce the mortgage.] \r\n70. Accession to mortgaged property .– If, after the date of a mortgage, any \r\naccession is made to the mortgaged property, the mortgagee, in the absence of a \r\ncontract to the contrary, shall, for the purposes of the security, be entitled to such \r\naccession. \r\nIllustrations \r\n(a) A mortgages to B a certain field bordering on a river. The field is \r\nincreased by alluvion. For the purposes of his security, B is entitled to the increase. \r\n(b) A mortgages a certain plot of building land to B and afterwards erects a \r\nhouse on the plot. For the purposes of his security B is entitled to the house as well \r\nas the plot. \r\n71. Renewal of mortgaged lease.– When the mortgaged property is a lease \r\n128\r\n[* \r\n* *], and the mortgagor obtains a renewal of the lease, the mortgagee , in the \r\nabsence of a contract to the contrary, shall, for the purposes of the security, be \r\nentitled to the new lease. \r\n72. Rights of mortgagee in possession .– \r\n129\r\n[A mortgagee] may spend such \r\nmoney as is necessary– \r\n130\r\n[* * * * * * * * * * * * ] \r\n \r\n128The words “for a term of years” repealed by the Tra nsfer of Property (Amendment) Act, 1929 (XX of 1929); and published in \r\nthe Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 36. \r\n129Substituted ibid., s. 37 for “When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged \r\nproperty, he”. \r\n130Clause (a) was repealed, ibid. \r\n(b) for \r\n131\r\n[the preservation of the mortgaged property] from destruction, \r\nforfeiture or sale; \r\n(c) for supporting the mortgagor‟s title to the property; \r\n(d) for making his own title thereto good against the mortgagor; and, \r\n(e) when the mortgaged property is a renewable lease -hold, for the \r\nrenewal of the lease; \r\nand may, in the absence of a contract to the contrary, add such money to the \r\nprincipal money, at the rate of interest payable on the principal, and where no such \r\nrate is fixed, at the rate of nine per cent. per annum: \r\n \r\n132\r\n[Provided that the expenditure of money by the mortgagee under clause (b) \r\nor clause (c) shall not be deemed to be necessary unless the mortgagor has been \r\ncalled upon and has failed to take proper and timely steps to preserve the property \r\nor to support the title]. \r\n Where the property is by its nature insurable, the mortgagee may also, in the \r\nabsence of a contract to the contrary , insure and keep insured against loss or \r\ndamage by fire the whole or any part of such property; and the premiums paid for \r\nany such insurance shall be \r\n133\r\n[added to the principal money with interest at the same \r\nrate as is payable on the principal money or, wh ere no such rate is fixed, at the rate \r\nof nine per cent. per annum]. But the amount of such insurance shall not exceed the \r\namount specified in this behalf in the mortgage -deed or (if no such amount is therein \r\nspecified) two-thirds of the amount that would be required in case of total destruction \r\nto reinstate the property insured. \r\n Nothing in this section shall be deemed to authorize the mortgagee to insure \r\nwhen an insurance of the property is kept up by or on behalf of the mortgagor to the \r\namount in which the mortgagee is hereby authorized to insure. \r\n134\r\n[73. Right to proceeds of revenue sale or compensation on acquisition .– (1) \r\nWhere the mortgaged property or any part thereof or any interest therein is sold \r\nowing to failure to pay arrears of revenue or other c harges of a public nature or rent \r\ndue in respect of such property, and such failure did not arise from any default of the \r\nmortgagee, the mortgagee shall be entitled to claim payment of the mortgage -\r\nmoney, in whole or in part, out of any surplus of the sale -proceeds remaining after \r\npayment of the arrears and of all charges and deductions directed by law. \r\n (2) Where the mortgaged property or any part thereof or any interest \r\ntherein is acquired under the Land Acquisition Act, 1894\r\n135\r\n, or any other enactment \r\nfor the time being in force providing for the compulsory acquisition of immovable \r\nproperty, the mortgagee shall be entitled to claim payment of the mortgage -money, \r\nin whole or in part, out of the amount due to the mortgagor as compensation. \r\n \r\n131Substituted ibid., for “its preservation.” \r\n132Inserted ibid. \r\n133Substituted for the original words, by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published i n the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 36. \r\n134Substituted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, \r\nPunjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 38. \r\n135I of 1894 \r\n (3) Such claims sh all prevail against all other claims except those of prior \r\nencumbrances, and may be enforced notwithstanding that the principal money on \r\nthe mortgage has not become due.] \r\n136\r\n[74. * * * * * * * * * * * * ] \r\n137\r\n[75. * * * * * * * * * * * * ] \r\n76. Liabilities of mortgagee in possession .– When, during the continuance of \r\nthe mortgage, the mortgagee takes possession of the mortgaged property,– \r\n(a) he must manage the property as a person of ordinary prudence would \r\nmanage it if it were his own; \r\n(b) he must use his be st endeavours to collect the rents and profits \r\nthereof; \r\n(c) he must, in the absence of a contract to the contrary, out of the income \r\nof t he property, pay the Government -revenue, all other charges of a \r\npublic nature \r\n138\r\n[and all rent] accruing due in respect t hereof during \r\nsuch possession, and any arrears of rent in default of payment of which \r\nthe property may be summarily sold; \r\n(d) he must, in the absence of a contract to the contrary, make such \r\nnecessary repairs of the property as he can pay for out of the re nts and \r\nprofits thereof after deducting from such rents and profits the payments \r\nmentioned in clause (c) and the interest on the principal money; \r\n(e) he must not commit any act which is destructive or permanently \r\ninjurious to the property; \r\n(f) where he has insured the whole or any part of the property against loss \r\nor damage by fire, he must, in case of such loss or damage, apply any \r\nmoney which he actually receives under the policy or so much thereof \r\nas may be necessary, in reinstating the property, or, if the mortgagor \r\nso directs, in reduction or discharge of the mortgage-money; \r\n(g) he must keep clear, full and accurate accounts of all sums received \r\nand spent by him as mortgagee, and, at any time during the \r\ncontinuance of the mortgage, give the mortgagor, a t his request and \r\ncost, true copies of such accounts and of the vouchers by which they \r\nare supported; \r\n(h) his receipts from the mortgaged property, or, where such property is \r\npersonally occupied by him, a fair occupation -rent in respect thereof, \r\nshall, aft er deducting the expenses \r\n139\r\n[properly incurred for the \r\n \r\n136Section 74 “ Right of subsequent mortgagee to pay off prior mortgagee ” repealed by the Transfer of Property \r\n(Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Dependencies, date d \r\n25.10.1929, pages 121-153, s. 39. \r\n137Section 75 “ Rights of mesne mortgagee against prior and subsequent mortgagees ” repealed by the Transfer of \r\nProperty (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Dependencies, dated \r\n25.10.1929, pages 121-153, s. 39. \r\n138Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.40. \r\n139Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.40. \r\nmanagement of the property and the collection of rents and profits and \r\nthe other expenses] mentioned in clauses (c) and (d), and interest \r\nthereon be debited against him in reduction of the amount (if an y) from \r\ntime to time due to him on account of interest \r\n140\r\n[* * *] and, so far as \r\nsuch receipts exceed any interest due, in reduction or discharge of the \r\nmortgage-money; the surplus, if any, shall be paid to the mortgagor; \r\n(i) when the mortgagor tenders, or d eposits in manner hereinafter \r\nprovided, the amount for the time being due on the mortgage, the \r\nmortgagee must, notwithstanding the provisions in the other clauses of \r\nthis section, account for his \r\n141\r\n[***] receipts from the mortgaged property \r\nfrom the date of the tender or from the earliest time when he could take \r\nsuch amount out of Court, as the case may be \r\n142\r\n[and shall not be \r\nentitled to deduct any amount therefrom on account of any expenses \r\nincurred after such date or time in connection with the mortgaged \r\nproperty]. \r\n Loss occasioned by his default .– If the mortgagee fails to perform any of \r\nthe duties imposed upon him by this section, he may, when accounts are taken in \r\npursuance of a decree made under this c hapter, be debited with the loss, if any, \r\noccasioned by such failure. \r\n77. Receipts in lieu of interest.– Nothing in section seventy-six, clauses (b), (d), \r\n(g) and (h), applies to cases where there is a contract between the mortgagee and \r\nthe mortgagor that the receipts from the mortgaged property shall, so lo ng as the \r\nmortgagee is in possession of the property, be taken in lieu of interest on the \r\nprincipal money, or in lieu of such interest and defined portions of the principal. \r\nPriority \r\n78. Postponement of prior mortgagee .– Where, through the fraud, \r\nmisrepresentation or gross neglect of a prior mortgagee, another person has been \r\ninduced to advance money on the security of the mortgaged property, the prior \r\nmortgagee shall be postponed to the subsequent mortgagee. \r\n79. Mortgage to secure uncertain amount when maximum is expressed.– If a \r\nmortgage made to secure future advances, the performance of an engagement or \r\nthe balance of a running account, expresses the maximum to be secured thereby, a \r\nsubsequent mortgage of the same property shall, if made with notice of th e prior \r\nmortgage, be postponed to the prior mortgage in respect of all advances or debts not \r\nexceeding the maximum , though made or allowed with notice of the subsequent \r\nmortgage. \r\nIllustration \r\n \r\n140The words “on the mortgage-money” repealed ibid. \r\n141The word “gross” repealed by the Transfer of Propert y (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.40. \r\n142Inserted, ibid \r\n A mortgages \r\n143\r\n[Diwanpur] to his bankers, B & Co., to secure the balance of \r\nhis account with them to the extent of Rs.10,000. A then mortgages \r\n144[141][Diwanpur] \r\nto C, to secure Rs.10,000, C having notice of the mortgage to B & Co., and C gives \r\nnotice to B & Co., of the second mortgage. At the date of the second mortgage, the \r\nbalance due to B & Co. does not exceed Rs.5,000. B & Co., subsequently advanced \r\nto A sums making the balance of the account against him exceed the sum of \r\nRs.10,000. B & Co. are entitled, to the extent of Rs.10,000, to priority over C. \r\n145\r\n[80. * * * * * * * * * * * * ] \r\nMarshalling and Contribution \r\n146\r\n[81. Marshalling securities .– If the owner of two or more properties mortgages \r\nthem to one person and then mortgages one or more of the properties to another \r\nperson, the subsequent mortgagee is, in the absenc e of a contract to the contrary, \r\nentitled to have the prior mortgage-debt satisfied out of the property or properties not \r\nmortgaged to him, so far as the same will extend, but not so as to prejudice the \r\nrights of the prior mortgagee or of any other person who has for consideration \r\nacquired an interest in any of the properties.] \r\n82. Contribution to mortgage -debt.– \r\n147\r\n[Where property subject to a mortgage \r\nbelongs to two or more persons having distinct and separate rights of ownership \r\ntherein, the different shares in or parts of such property owned by such persons are, \r\nin the absence of a contract to the contrary, liable to contribute rateably to the debt \r\nsecured by the mortgage, and, for the purpose of determining the rate at which each \r\nsuch share or part shall contribute, the value thereof shall be deemed to be its value \r\nat the date of the mortgage after deduction of the amount of any other mortgage or \r\ncharge to which it may have been subject on that date]. \r\n Where, of two properties belonging to the same owner, one is mortgaged to \r\nsecure one debt and then both are mortgaged to secure another debt, and the \r\nformer debt is paid out of the former property, each property is, in the absence of a \r\ncontract to the contrary, liable to contribute rateably to the latter deb t after deducting \r\nthe amount of the former debt from the value of the property out of which it has been \r\npaid. \r\n Nothing in this section applies to a property liable under section eighty-one to \r\nthe claim of the \r\n148\r\n[subsequent] mortgagee. \r\nDeposit in Court \r\n \r\n143Substituted for the word “Sultanpur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.12. \r\n144[141]Substituted for the word “ Sultanpur” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in \r\nthe Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.12. \r\n145Section 80 “Tacking abolished” repealed by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in \r\nthe Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.41. \r\n146Substituted ibid, s. 42. \r\n147Substituted for the original paragraph by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.43. \r\n148Substituted for the word “second” by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.43. \r\n83. Power to deposit in c ourt money due on mortgage .– At any time after the \r\nprincipal money \r\n149\r\n[payable in respect of any mortgage has become due] and before \r\na suit for redemption of the mortgaged property is barred, the mortgagor, or any \r\nother person entitled to institute such suit, may deposit, in any Court in which he \r\nmight have instituted such suit, to the account of the mortgagee, the amount \r\nremaining due on the mortgage. \r\n Right to money deposited by mortgagor .– The Court shall thereupon \r\ncause written notice of the deposit to be served on the mortgagee, and the \r\nmortgagee may, on presenting a petition (verified in manner prescribed by \r\n150[147]law \r\nfor the verification of plaints) stating the amount then due on the mortgage, and his \r\nwillingness to accept the money so deposited in full discharge of such amount, and \r\non depositing in the same court the mortgaged -deed \r\n151\r\n[and all documents in his \r\npossession or power relating to the mortgaged property] apply for and receive the \r\nmoney, and the mortgage deed , \r\n152\r\n[and all such other documents] so deposited shall \r\nbe delivered to the mortgagor or such other person as aforesaid. \r\n \r\n153\r\n[Where the mortgagee is in possession of the mortgaged property, the Court \r\nshall, before paying to him the amount so deposited, direct him to deliver pos session \r\nthereof to the mortgagor and at the cost of the mortgagor either to re -transfer the \r\nmortgaged property to the mortgagor or to such third person as the mortgagor may \r\ndirect or to execute and (where the mortgage has been effected by a registered \r\ninstrument) have registered and acknowledgment in writing that any right in \r\nderogation of the mortgagor‟s interest transferred to the mortgage has been \r\nextinguished.] \r\n84. Cessation of interest .– When the mortgagor or such other person as \r\naforesaid has tendered or deposited in court under section eighty-three the amount \r\nremaining due on the mortgage, interest on the principal money shall cease from the \r\ndate of the tender or \r\n154\r\n[in the case of a deposit, where no previous tender of such \r\namount has been made ,] as so on as the mortgagor or such other person as \r\naforesaid has done all that has to be done by him to enable the mortga gee to take \r\nsuch amount out of c ourt, \r\n155\r\n[and the notice required by section 83 has been served \r\non the mortgagee: \r\n Provided that, where the mort gagor has deposited such amount without \r\nhaving made a previous tender thereof and has subsequently withdrawn the same or \r\nany part thereof, interest on the principal money shall be payable from the date of \r\nsuch withdrawal]. \r\n \r\n149Substituted ibid, s. 44, for the words “has become payable”. \r\n150See the Code of Civil Procedure, 1908 (V of 1908), Schedule I, Order VI, rule 15. \r\n151Substituted for the words “if then in his possession or power” by the Transfer of Property (Amendment) Act 1929 (XX of \r\n1929); and published in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 44. \r\n152Inserted by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 44. \r\n153Ibid. \r\n154Inserted ibid., s. 45. \r\n155Substituted for the words “as the case may be”by the Transfer of Property (Amendment) Act 1929 (XX of 1929) ; and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 45. \r\n Nothing in this section or in se ction eighty-three shall be deemed to deprive \r\nthe mortgagee of his right to interest when there exists a contract that he shall be \r\nentitled to reasonable notice before payment or tender of the mortgage-money \r\n156\r\n[and \r\nsuch notice has not been given before the making of the tender or deposit, as the \r\ncase may be]. \r\n157\r\nSuit for Foreclosure, Sale or Redemption \r\n158\r\n[85. * * * * * * * * * * * * ] \r\n159\r\nForeclosure and Sale \r\n160\r\n[86 to 90. * * * * * * * * * * * ] \r\nRedemption \r\n161\r\n[91. Persons who may sue for redemption. Besides the m ortgagor, any of the \r\nfollowing persons may redeem, or institute a suit for redemption of, the mortgaged \r\nproperty, namely:– \r\n(a) any person (other than the mortgagee of the interest sought to be \r\nredeemed) who has any interest in, or charge upon, the property \r\nmortgaged or in or upon the right to redeem the same; \r\n(b) any surety for the payment of the mortgage-debt or any part thereof; or \r\n(c) any creditor of the mortgagor who has in a suit for the administration of \r\nhis estate obtained a decree for sale of the mortgaged property.] \r\n162\r\n[92. Subrogation.– Any of the persons referred to in section 91 (other than the \r\nmortgagor) and any co -mortgagor shall, on redeeming property subject to the \r\nmortgage, have, so far as regards redemption, foreclosure or sale of such proper ty, \r\nthe same rights as the mortgagee whose mortgage he redeems may have against \r\nthe mortgagor or any other mortgagee. \r\n The right conferred by this section is called the right of subrogation, and a \r\nperson acquiring the same is said to be subrogated to the r ights of the mortgagee \r\nwhose mortgage he redeems. \r\n A person who has advanced to a mortgagor money with which the mortgage \r\nhas been redeemed shall be subrogated to the rights of the mortgagee whose \r\nmortgage has been redeemed, if the mortgagor has by a regis tered instrument \r\nagreed that such persons shall be so subrogated. \r\n \r\n156Inserted ibid, s. 45. \r\n157For the repealed provisions, as re-enacted, see the Code of Civil Procedure, 1908 (V of 1908), Schedule I, Order XXXIV. \r\n158Section 85 “ Parties to suits for Foreclosure, sale and redemption ” repealed by the Code of Civil Procedure 1908 (V of \r\n1908). \r\n159For the repealed provisions, as re-enacted, see the Code of Civil Procedure, 1908 (V of 1908), Schedule I, Order XXXIV. \r\n160Sections 86 to 90 repealed by the Code of Civil Procedure 1908 (V of 1908). \r\n161Substituted for the original section by the Tr ansfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.46. \r\n162Ss. 92 to 94 were inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 47. \r\n Nothing in this section shall be deemed to confer a right of subrogation on any \r\nperson unless the mortgage in respect of which the right is claimed has been \r\nredeemed in full. \r\n93. Prohibition of tacking.– No mortgagee paying off a prior mortgage, whether \r\nwith or without notice of an intermediate mortgage, shall thereby acquire any priority \r\nin respect of his original security; and, except in the case provided for by section 79, \r\nno mortgagee ma king a subsequent advance to the mortgagor, whether with or \r\nwithout notice of an intermediate mortgage, shall thereby acquire any priority in \r\nrespect of his security for such subsequent advance. \r\n94. Rights of mesne mortgagee .– Where a property is mortgaged for \r\nsuccessive debts to successive mortgagees, a mesne mortgagee has the same \r\nrights against mortgagees posterior to himself as he has against the mortgagor]. \r\n163\r\n[95. Right of redeeming co -mortgagor to expenses .– Where one of several \r\nmortgagors redeems the mortgaged property, he shall, in enforcing his right of \r\nsubrogation under section 92 against his co -mortgagors, be entitled to add to the \r\nmortgage-money recoverable from them such proportion of the expenses properly \r\nincurred in such redemption as is attributable to their share in the property. \r\n96. Mortgage by deposit of title-deeds.– The provisions hereinbefore contained \r\nwhich apply to a simple mortgage shall, so far as may be, apply to a mortgage by \r\ndeposit of title-deeds.] \r\n164\r\n[97. * * * * * * * * * * * * ] \r\nAnomalous Mortgages \r\n98. Mortgage not described in section 58, clauses (b), (c), (d) and (e) .– In the \r\ncase of \r\n165\r\n[an anomalous mortgage] the rights and liabilities of the parties shall be \r\ndetermined by their contract as evidenced in the mortgage -deed, and, so far as such \r\ncontract does not extend, by local usage. \r\n166\r\n[99. * * * * * * * * * * * * ] \r\nCharges \r\n100. Charges.– Where immoveable property of one person is by act of parties or \r\noperation of law made security for the payment of money to another, and the \r\ntransaction does not amount to a mortgage, the latter person is said to have a \r\n \r\n163Original Section 95 was replaced with new Ss.95 and 96 by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); \r\nand published in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.48. \r\n164Section 97 “Application of proceeds” repealed by the Code of Civil Procedure 1908 (V of 1908). For the repealed provision \r\nas re-enacted, see the Code of Civil Procedure 1908 (V of 1908), Schedule I, Order XXXIV, Rules 12 & 13. \r\n165Substituted for the words “a mortgage, not being a simple mortgage, a mortgage by conditional sale, an usufructuary \r\nmortgage or an English mortgage or a combination of the first and third, or the second and third, of such forms” by the Transfer \r\nof Property (Amendment) Act 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Dependencies, \r\ndated 25.10.1929, pages 121-153, s. 49. \r\n166Section 99 “Attachment of mortgaged property ” repeale d by the Code of Civil Procedure 1908 (V of 1908). For the \r\nrepealed provisions as re-enacted, see Act V of 1908, Schedule I, Order XXXIV, rule 14. \r\ncharge on the property; and all the provisions hereinbefore contained \r\n167\r\n[which apply \r\nto a simple mortgage shall, so far as may be, apply to such charge]. \r\n Nothing in this section applies to the charge of a trustee on the trust -property \r\nfor expenses properly incurred in the execution of his trust \r\n168\r\n[and, save as otherwise \r\nexpressly provided by any law for the time being in force, no charge shall be \r\nenforced against any property in th e hands of a person to whom such property has \r\nbeen transferred for consideration and without notice of the charge]. \r\n169\r\n[101. No merger in case of subsequent encumbrance. Any mortgagee of, or \r\nperson having a charge upon, immovable property, or any transferee from such \r\nmortgagee or charge -holder, may purchase or otherwise acquire the rights in the \r\nproperty of the mortgagor or owner, as the case may be, without thereby causing the \r\nmortgage or charge to be merged as between himself and any subsequent \r\nmortgagee of, or person having a subsequent charge upon, the same property; and \r\nno such subsequent mortgagee or charge -holder shall be entitled to foreclose or sell \r\nsuch property without redeeming the prior mortgage or charge, or otherwise than \r\nsubject thereto.] \r\nNotice and Tender \r\n102. Service or tender on or to agent .– Where the person on or to whom any \r\nnotice or tender is t o be served or made under this c hapter does not reside in the \r\ndistrict in which the mortgaged property of some part thereof is situate, service or \r\ntender on or to an agent holding a general power -of-attorney from such person or \r\notherwise duly authorised to accept such service or tender shall be deemed \r\nsufficient. \r\n \r\n170\r\n[Where no person or agent on whom such notice should be served can be \r\nfound or is kno wn] to the person required to serve the notice, the later person may \r\napply to any Court in which a suit might be brought for redemption of the mortgaged \r\nproperty, and such Court shall direct in what manner such notice shall be served, \r\nand any notice served in compliance with such direction shall be deemed sufficient: \r\n \r\n171\r\n[Provided that, in the case of a notice required by Section 83, in the case of \r\na deposit, the application shall be made to the Court in which the deposit has been \r\nmade]. \r\n \r\n172\r\n[Where no person or agent to whom such tender should be made can be \r\nfound or is known] to the person desiring to make the tender, the later person may \r\ndeposit \r\n173\r\n[in any Court in which a suit might be brought for redemption of the \r\n \r\n167Substituted for the words “as to a mortgagor shall, so far as may be, apply to the owner of such property, a nd the provisions \r\nof ss. 81 and 82 shall, so far as may be, apply to such charge” by the Transfer of Property (Amendment) Act, 1929 (XX of \r\n1929); and published in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 50. \r\n168Inserted ibid. \r\n169Substituted ibid., s. 51, for the original section. \r\n170Substituted for the words “where the person or agent on whom such notice should be served cannot be found in the said \r\ndistrict, or is unknown” by the Transfer of Property (Amendment) Act , 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 52. \r\n171Proviso inserted ibid. \r\n172Substituted for the words “Where the person or agent to whom such tender should be made cannot be fo und within the said \r\ndistrict, or is unknown” by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 52. \r\n173Ibid., for the words “in such Court as last aforesaid”. \r\nmortgaged property] the amount sought to be te ndered, and such deposit shall have \r\nthe effect of a tender of such amount. \r\n103. Notice, &c., to or by person incompetent to contract .– Where, under the \r\nprovisions of this Chapter, a notice is to be served on or by, or a tender or deposit \r\nmade or accepted or taken out of court by, any person incompetent to contract, such \r\nnotice may be served \r\n174\r\n[on or by], or tender or deposit made, accepted or taken by \r\nthe legal curator of the property of such person; but where there is no such curator, \r\nand it is requisite or desirable in the interests of such person that a notice should be \r\nserved or a tender or deposit mad e under the provisions of this c hapter, application \r\nmay be made to any Court in which a suit might be brought for the redemption of the \r\nmortgage to appoint a guardian ad litem for the purpose of serving or receiving \r\nservice of such notice, or making or accepting such tend er, or making or taking out \r\nof court such deposit, and for the performance of all consequential acts which could \r\nor ought to be done by such person if he were competent to contract\r\n175\r\n; and the \r\nprovisions of \r\n176\r\n[Order XXXII in the First Schedule to the Code of Civil Procedure, \r\n1908\r\n177\r\n] shall, so far as may be, apply to such application and to the parties thereto \r\nand to the guardian appointed thereunder. \r\n104. Power to make rules .– The \r\n178\r\n[Lahore High Court] may, from time to time, \r\nmake rules consistent with this Act for carrying out, in itself and in the Courts of Civil \r\nJudicature subject to its superintendence, the provisions contained in this chapter. \r\nCHAPTER V \r\nOF LEASES OF IMMOVEABLE PROPERTY \r\n105. Lease defined .– A lease of immovable property is a transfer of a right to \r\nenjoy such property, made for a certain time, express or implied, or in perpetuity, in \r\nconsideration of a price paid or promised, or of money, a share of crops, service or \r\nany other thing of value, to be rendered periodically or on specified occasions to the \r\ntransferor by the transferee, who accepts the transfer on such terms. \r\n Lessor, lessee, premium and rent defined .– The transferor i s called the \r\nlessor, the transferee is called the lessee, the price is called the premium, and the \r\nmoney, share, service or other thing to be so rendered is called the rent. \r\n106. Duration of certain leases in absence of written contract or local usage.– \r\nIn the absence of a contract or local law or usage to the contrary, a lease of \r\nimmovable property for agricultural or manufacturing purposes shall be deemed to \r\nbe a lease from year to year, terminable, on the part of either lessor or lessee, by six \r\nmonths‟ n otice expiring with the end of a year of the tenancy; and a lease of \r\nimmovable property for any other purpose shall be deemed to be a lease from month \r\n \r\n174Inserted ibid., s. 53. \r\n175As to persons competent to contract, see ss.11 and 12 of the Contract Act, 1872 (IX of 1872). \r\n176Substituted for “Chapter XXXI of the Code of Civil Procedure” by the Transfer of Property (Amendment) Act 1929 (XX o f \r\n1929); and published in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 53. \r\n177V of 1908 \r\n178Substituted for the words “High Court” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and published in the \r\nGazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.13. \r\nto month, terminable, on the part of either lessor or lessee, by fifteen days‟ notice \r\nexpiring with the end of a month of tenancy. \r\n Every notice under this section must be in writing signed by or on behalf of the \r\nperson giving it, and \r\n179\r\n[either be sent by post to the party who is intended to be \r\nbound by it or be tendered or delivered personally to such party], or to one of his \r\nfamily or servants at his residence, or (if such tender or delivery is not practicable) \r\naffixed to a conspicuous part of the property. \r\n180\r\n107. Leases how made.– A lease of immovable property from year to year, or for \r\nany term exceeding one year, or reserving a yearly rent, can be made only by a \r\nregistered instrument. \r\n \r\n181\r\n[All other leases of immovable property may be made either by a registered \r\ninstrument or by oral agreement accompanied by delivery of possession]. \r\n \r\n182\r\n[Where a lease of immovab le property is made by a registered instrument, \r\nsuch instrument or, where there are more instruments than one, each such \r\ninstrument shall be executed by both the lessor and the lessee:] \r\n \r\n183\r\n[Provided that the \r\n184\r\n[Government] may, \r\n185\r\n[* * *] from time to time, by \r\nnotification in the \r\n186\r\n[official Gazette], direct that leases of immovable property, other \r\nthan leases from year to year, or for any term exceeding one year, or reserving a \r\nyearly rent, or any class of such leases, may be made by unregistered instrument or \r\nby oral agreement without delivery of possession. \r\n108. Rights and liabilities of lessor and lessee .– In the absence of a contract or \r\nlocal usage to the contrary, the lessor and the lessee of immovable property, as \r\nagainst one another, respectively, possess the rights and are subject to the liabilities \r\nmentioned in the rules next following, or such of them as are app licable to the \r\nproperty leased:– \r\n(A).– Rights and Liabilities of the Lessor \r\n(a) The lessor is bound to disclose to the lessee any material defec t in the \r\nproperty, with reference to its intended use, of which the former is and \r\nthe later is not aware, and which the later could not with ordinary care \r\ndiscover: \r\n \r\n179Substituted for the words “tendered or delivered either personally to the party who is intended to be bound by it,” by the \r\nTransfer of Property (Amendment) Act, 1929 (XX of 1929) ; and published in the Government Gazette, Punjab and its \r\nDependencies, dated 25.10.1929, pages 121-153, s. 54. \r\n180As to limitation to the territorial operation of s. 107, see s. 1, supra. S. 107 extends to every cantonment in the Province, see \r\ns. 287 of the Cantonments Act, 1924 (II of 1924); and published in the Gazette of India, Part IV, dated 23.2.1924, pages 3-58. \r\n181Substituted for the original paragraph.by the Transfer of Property (Amendment) Act, 1904 (VI of 1904); and published in the \r\nGovernment Gazette Punjab and its Dependencies, dated 24.3.1904, page 9, s. 5, \r\n182Inserted by the Transfer of Property (Amendment) Act 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 55. \r\n183Proviso inserted by the Transfer of Property (Amendment) Act, 1904 (VI of 1904); and published in the Government Gazette \r\nPunjab and its Dependencies, dated 24.3.1904, page 9, s. 5. \r\n184Substituted for the words “Provincial Government” by the Transfer of Property (Amen dment) Act 2011 (VIII of 2011); and \r\npublished in the Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.14. \r\n185The words “with the previous sanction of the Governor General in Council” repealed by the Government of India (Adaptation \r\nof Indian Laws) Order, 1937; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75-344, see Article 3 \r\nand Schedule I. \r\n186Substituted ibid, for “local official Gazette”. \r\n(b) the lessor is bound, on the lessee‟s request, to put him in possession \r\nof the property: \r\n(c) the lessor shall be deemed to contract with the lessee that, if the later \r\npays the rent reserved by the lease and performs the contracts binding \r\non the lessee, he may hold the property during the time limited by the \r\nlease without interruption. \r\n The be nefit of such contract shall be annexed to and go with the lessee‟s \r\ninterest as such, and may be enforced by every person in whom that interest is for \r\nthe whole or any part thereof from time to time vested. \r\n(B) Rights and Liabilities of the Lessee \r\n(d) If d uring the continuance of the lease any accession is made to the \r\nproperty, such accession (subject to the law relating to alluvion for the \r\ntime being in force) shall be deemed to be comprised in the lease: \r\n(e) if by fire, tempest or flood, or violence of an army or of a mob or other \r\nirresistible force, any material part of the property be wholly destroyed \r\nor rendered substantially and permanently unfit for the purposes for \r\nwhich it was let, the lease shall, at the option of the lessee, be void: \r\nProvided that, if the injury be occasioned by the wrongful act or default \r\nof the lessee, he shall not be entitled to avail himself of the benefit of \r\nthis provision: \r\n(f) if the lessor neglects to make, within a reasonable time after notice, \r\nany repairs which he is bound to make to the property, the lessee may \r\nmake the same himself, and deduct the expense of such repairs with \r\ninterest from the rent or otherwise recover it from the lessor: \r\n(g) if the lessor neglects to make any payment which he Is bound to make, \r\nand which, if not made by him, is recoverable from the lessee or \r\nagainst the property, the lessee may make such payment himself, and \r\ndeduct it with interest from the rent, or otherwise recover it from the \r\nlessor: \r\n(h) the lessee may \r\n187\r\n[even after the determination of the lease] remove, at \r\nany time \r\n188\r\n[whilst he is in possession of the property leased but not \r\nafterwards,] all things which he has attached to the earth: provided he \r\nleaves the property in the state in which he received it: \r\n(i) when a lease of uncertain durat ion determines by any means except \r\nthe fault of the lessee, he or his legal representative is entitled to all the \r\ncrops planted or sown by the lessee and growing upon the property \r\nwhen the lease determines, and to free ingress and egress to gather \r\nand carry them: \r\n(j) the lessee may transfer absolutely or by way of mortgage or sub -lease \r\nthe whole or any part of his interest in the property, and any transferee \r\nof such interest or part may again transfer it. The lessee shall not, by \r\n \r\n187Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s.56. \r\n188Substituted ibid., for the words “during the continuance of the lease”. \r\nreason only of such transfer, cease to be subject to any of the liabilities \r\nattaching to the lease: \r\nnothing in this clause shall be deemed to authorize a tenant having an \r\nuntransferable right of occupancy, the farmer of an estate in respect of \r\nwhich default has been made in paying r evenue, or the lessee of an \r\nestate under the management of a Court of Wards, to assign his \r\ninterest as such tenant, farmer or lessee: \r\n(k) the lessee is bound to disclose to the lessor any fact as to the nature or \r\nextent of the interest which the lessee is about to take, of which the \r\nlessee is, and the lessor is not aware, and which materially increases \r\nthe value of such interest: \r\n(l) the lessee is bound to pay or tender, at the proper time and place, the \r\npremium or rent to the lessor or his agent in this behalf: \r\n(m) the lessee is bound to keep, and on the termination of the lease to \r\nrestore, the property in as good condition as it was in at the time when \r\nhe was put in possession, subject only to the changes caused by \r\nreasonable wear and tear or irresistible force, and to allow the lessor \r\nand his agents, at all reasonable times during the term, to enter upon \r\nthe property and inspect the condition thereof and give or leave notice \r\nof any defect in such condition, and, when such defect has been \r\ncaused by any act or default on the part of the lessee, his servants or \r\nagents, he is bound to make it good within three months after such \r\nnotice has been given or left: \r\n(n) if the lessee becomes aware of any proceeding to recover the property \r\nor any part thereof, or of any encroachment made upon, or any \r\ninterference with, the lessor‟s rights concerning such property, he is \r\nbound to give, with reasonable diligence, notice thereof to the lessor: \r\n(o) the lessee may use the property and its products (if any) as a person of \r\nordinary prudence would use them if they were his own; but he -must \r\nnot use, or permit another to use, the property for a purpose other than \r\nthat for which it was leased, or fell \r\n189\r\n[or sell] timber, pull down or \r\ndamage buildings, \r\n190\r\n[belonging to the lessor or] wo rk mines or quarries \r\nnot open when the lease was granted, or commit any other act which is \r\ndestructive or permanently injurious thereto: \r\n(p) he must not, without the lessor‟s consent, erect on the property any \r\npermanent structure, except for agricultural purposes: \r\n(q) on the determination of the lease, the lessee is bound to put the lessor \r\ninto possession of the property. \r\n109. Rights of lessor’s transferee.– If the lessor transfers the property leased, or \r\nany part thereof, or any part of his interest there in, the transferee, in the absence of \r\na contract to the contrary, shall possess all the rights, and, if the lessee so elects, be \r\nsubject to all the liabilities of the lessor as to the property or part transferred so long \r\n \r\n189Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 56. \r\n190Ibid. \r\nas he is the owner of it; but the l essor shall not, by reason only of such transfer, \r\ncease to be subject to any of the liabilities imposed upon him by the lease, unless \r\nthe lessee elects to treat the transferee as the person liable to him: \r\n Provided that the transferee is not entitled to ar rears of rent due before the \r\ntransfer, and that, if the lessee, not having reason to believe that such transfer has \r\nbeen made, pays rent to the lessor, the lessee shall not be liable to pay such rent \r\nover again to the transferee. \r\n The lessor, the transfere e and the lessee may determine what proportion of \r\nthe premium or rent reserved by the lease is payable in respect of the part so \r\ntransferred, and, in case they disagree, such determination may be made by any \r\nCourt having jurisdiction to entertain a suit for the possession of the property leased. \r\n110. Exclusion of day on which term commences .– Where the time limited by a \r\nlease of immovable property is expressed as commencing from a particular day, in \r\ncomputing that time such day shall be excluded. Where no day of commencement is \r\nnamed, the time so limited begins from the making of the lease. \r\n Duration of lease for a year.– Where the time so limited is a year or a \r\nnumber of years, in the absence of an express agreement to the contrary, the lease \r\nshall last during the whole anniversary of the day from which such time commences. \r\n Option to determine lease .– Where the time so limited is expressed to be \r\nterminable before its expiration, and the lease omits to mention at whose option it is \r\nso terminable, the lessee, and not the lessor, shall have such option. \r\n111. Determination of lease.– A lease of immovable property determines– \r\n(a) by efflux of the time limited thereby: \r\n(b) where such time is limited conditionally on the happening of some \r\nevent-by the happening of such event: \r\n(c) where the interest of the lessor in the property terminates on, or his \r\npower to dispose of the same extends only to, the happening of any \r\nevent– by the happening of such event: \r\n(d) in case the interests of the lessee and the lessor in the whole of the \r\nproperty become vested at the same time in one person in the same \r\nright: \r\n(e) by express surrender; that is to say, in case the lessee yields up his \r\ninterest under the lease to the lessor, by mutual agreement between \r\nthem: \r\n(f) by implied surrender: \r\n(g) by forfeiture; that is to say, (1) in case the lessee breaks an express \r\ncondition which provides that , on breach thereof the lessor , may re -\r\nenter \r\n191\r\n[* * *] or (2) in case the lessee renounces his character as such \r\nby setting up a title in a third person or by claiming title in himself; \r\n192\r\n[or \r\n \r\n191The words “or the lease shall become void” repealed by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and \r\npublished in the Government Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 57. \r\n192Inserted ibid. \r\n(3) the lessee is adjudicated an insolvent and the lease provides that \r\nthe lessor may re -enter on the happening of such event]; and in \r\n193\r\n[any \r\nof these cases] the lessor or his transferee \r\n194\r\n[gives notice in writing to \r\nthe lessee of] his intention to determine the lease: \r\n(h) on the expiration of a notice to determine the lease, or to quit, or of \r\nintention to quit, the property leased, duly given by one party to the \r\nother. \r\nIllustration to clause (f) \r\n A lessee accepts from his lessor a new lease of the property leased, to take \r\neffect during the continuance of the existing lease. This is an implied surrender of the \r\nformer lease, and such lease determines thereupon. \r\n112. Waiver of forfeiture .– A forfeiture under section one hundred and eleven , \r\nclause (g), is waived by acceptance of rent which has become due since the \r\nforfeiture, or by distress for such rent, or by any other act on the part of the lessor \r\nshowing an intention to treat the lease as subsisting: \r\n Provided that the lessor is aware that the forfeiture has been incurred: \r\n Provided also that, where rent is accepted after the institution of a suit to eject \r\nthe lessee on the ground of forfeiture, such acceptance is not a waiver. \r\n113. Waiver of notice to quit .– A notice given under section 111, clause (h), is \r\nwaived, with the express or implied consent of the person to whom it is given, by any \r\nact on the part of the person giving it showing an intention to treat the lease as \r\nsubsisting. \r\nIllustrations \r\n(a) A, the lessor , gives B, the lessee, notice to quit the property leased. \r\nThe notice expires. B tenders, and A accepts, rent which has become due in respect \r\nof the property since the expiration of the notice. The notice is waived. \r\n(b) A, the lessor, gives B, the lessee, notice to quit the property leased. \r\nThe notice expires, and B remains in possession. A gives to B as lessee a second \r\nnotice to quit. The first notice is waived. \r\n114. Relief against forfeiture for non -payment of rent .– Where a lease of \r\nimmovable property h as determined by forfeiture for non -payment of rent, and the \r\nlessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or \r\ntenders the lessor the rent in arrear, together with interest thereon and his full costs \r\nof the suit, or gives such security as the Court thinks sufficient for making such \r\npayment within fifteen days, the Court may, in lieu of making a decree for ejectment \r\npass an order relieving the lessee against the forfeiture; and thereupon the lessee \r\nshall hold the property leased as if the forfeiture had not occurred. \r\n \r\n193Substituted ibid., for “either case”. \r\n194Ibid., for “does some act showing”. \r\n195\r\n[114A. Relief against forfeiture in certain other cases .– Where a lease of \r\nimmovable property has determined by forfeiture for a breach of an express \r\ncondition which provides that on breach thereof the lessor ma y re-enter, no suit for \r\nejectment shall lie unless and until the lessor has served on the lessee a not ice in \r\nwriting– \r\n(a) specifying the particular breach complained of; and \r\n(b) if the breach is capable of remedy, requiring the lessee to remedy the \r\nbreach; \r\n and the lessee fails, within a reasonable time from the date of the service of \r\nthe notice, to remedy the breach, if it is capable of remedy. \r\n Nothing in this section shall apply to an express condition against the \r\nassigning, under -letting, parting with t he possession, or disposing, of the property \r\nleased, or to an express condition relating to forfeiture in case of non -payment of \r\nrent.] \r\n115. Effect of surrender and forfeiture on under -leases.– The surrender, \r\nexpress or implied, of a lease of immovable pro perty does not prejudice an under \r\nlease of the property or any part thereof previously granted by the lessee, on terms \r\nand conditions substantially the same (except as regards the amount of rent) as \r\nthose of the original lease; but, unless the surrender is made for the purpose of \r\nobtaining a new lease, the rent payable by, and the contracts binding on, the under -\r\nlessee shall be respectively payable to and enforceable by the lessor. \r\n The forfeiture of such a lease annuls all such under-leases except where such \r\nforfeiture has been procured by the lessor in fraud of the under -lessees, or relief \r\nagainst the forfeiture is granted under section one hundred and fourteen. \r\n116. Effect of holding over .– If a lessee or under -lessee of property remains in \r\npossession the reof after the determination of the lease granted to the lessee, and \r\nthe lessor or his legal representative accepts rent from the lessee or under-lessee, or \r\notherwise assents to his continuing in possession, the lease is, in the absence of an \r\nagreement to the contrary, renewed from year to year, or from month to month, \r\naccording to the purpose for which the property is leased, as specified in section one \r\nhundred and six. \r\nIllustrations \r\n(a) A lets a house to B for five years B underlets the house to C at a \r\nmonthly rent of Rs.100. The five years expire, but C continues in possession of the \r\nhouse and pays the rent to A. Cs lease is renewed from month to month. \r\n(b) A lets a farm to B for the life of C. C dies, but B continue in possession \r\nwith A‟s assent. B‟s lease is renewed from year to year. \r\n117. Exemption of leases for agricultural purposes .– None of the provisions of \r\nthis Chapter apply to leases for agricultural purposes, except in so far as the \r\n196\r\n[Government] \r\n197\r\n[* * *] may, by notification published in the \r\n198\r\n[official Gazette], \r\n \r\n195[191]S. 114A inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government \r\nGazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s.58. \r\n196Substituted for the words “Provincial Government” by the Transfer of Property (Amendment) Act 2011 (VIII of 2011); and \r\npublished in the Gazette of Punjab (Extraordinary), dated 2.5.2011, pages 38631– 38632, s.14. \r\ndeclare all or any of such provisions to be so applicable \r\n199\r\n[in the case of all or any of \r\nsuch leases], together with, or subject to, those of the local law, if any, for the time \r\nbeing in force. \r\n Such notification shall not take effect unt il the expiry of six months from the \r\ndate of its publication. \r\nCHAPTER VI \r\nOF EXCHANGES \r\n118. “Exchange” defined.– When two persons mutually transfer the ownership of \r\none thing for the ownership of another, neither thing or both things being money \r\nonly, the transaction is called an “exchange”. \r\n A transfer of property in completion of an exchange can be made only in \r\nmanner provided for the transfer of such property by sale. \r\n200\r\n[119. Right of party deprived of thing received in exchange .– If any party to an \r\nexchange or any person claiming through or under such party is by reason of any \r\ndefect in the title of the other party deprived of the thing or any part of the thing \r\nreceived by him in exchange, them, unless a contrary intention appears from the \r\nterms of the exc hange, such other party is liable to him or any person claiming \r\nthrough or under him for loss caused thereby, or at the option of the person so \r\ndeprived, for the return of the thing transferred, if still in the possession of such other \r\nparty or his legal representative or a transferee from him without consideration.] \r\n120. Rights and liabilities of parties .– Save as otherwise provided in this \r\nChapter, each party has the rights and is subject to the liabilities of a seller as to that \r\nwhich he gives, and has the rights and is subject to the liabilities of a buyer as to that \r\nwhich he takes. \r\n121. Exchange of money .– On an exchange of money, each party thereby \r\nwarrants the genuineness of the money given by him. \r\nCHAPTER VII \r\nOF GIFTS \r\n122. “Gift” defined .– “Gift” is the transfer of certain existing movable or \r\nimmovable property made voluntarily and without consideration, by one person, \r\ncalled the donor, to another, called the donee, and accepted by or on behalf of the \r\ndonee. \r\n Acceptance when to be made .– Such acceptance must be made during the \r\nlife-time of the donor and while he is still capable of giving. \r\n \r\n197The words “with the previous sanction of the Governor General in Council,” repealed by the Devolution Act, 1920 (XXXVIII of \r\n1920), dated 14.9.1920, s. 2 and First Schedule. \r\n198Substituted for the words for the words “local official Gazette” the Government of India (Adaptation of Indian Laws) Order, \r\n1937; and published in the Gazette of India (Extraordinary), dated 1.4.1937, pages 75-344, see Article 3 and Schedule I. \r\n199Inserted by the Transfer of Property (Amendment) Act, 1904 (VI of 1904); and published in the Government Gazette Punjab \r\nand its Dependencies, dated 24.3.1904, page 9, s. 6. \r\n200Substituted for the original section by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the \r\nGovernment Gazette, Punjab and its Dependencies, dated 25.10.1929, pages 121-153, s. 59. \r\n If the donee dies before acceptance, the gift is void. \r\n201\r\n123. Transfer how effected .– For the purpose of making a gift of immovable \r\nproperty, the transfer must be ef fected by a registered instrument signed by or on \r\nbehalf of the donor, and attested by at least two witnesses. \r\n For the purpose of making a gift of movable property, the transfer may be \r\neffected either by a registered instrument signed as aforesaid or by delivery. \r\n Such delivery may be made in the same way as goods sold may be delivered. \r\n124. Gift of existing and future property .– A gift comprising both existing and \r\nfuture property is void as to the latter. \r\n125. Gift to several , of whom one does not accept .– A gift of a thing to two or \r\nmore donees, of whom one does not accept it, is void as to the interest which he \r\nwould have taken had he accepted. \r\n126. When gift may be suspended or revoked .– The donor and donee may \r\nagree that on the happening of any specif ied event which does not depend on the \r\nwill of the donor a gift shall be suspended or revoked; but a gift which the parties \r\nagree shall be revocable wholly or in part, at the mere will of the donor, is void wholly \r\nor in part, as the case may be. \r\n A gift ma y also be revoked in any of the cases (save want or failure of \r\nconsideration) in which, if it were a contract, it might be rescinded. \r\n Save as aforesaid a gift cannot be revoked. \r\n Nothing contained in this section shall be deemed to affect the rights of \r\ntransferees for consideration without notice. \r\nIllustrations \r\n(a) A gives a field to B, reserving to himself, with B‟s assent, the right to \r\ntake back the field in case B and his descendants dies before A. B dies without \r\ndescendants in A‟s lifetime. A may take back the field. \r\n(b) A gives a lakh of rupees to B, reserving to himself, with B‟s assent, the \r\nright to take back at pleasure Rs.10,000 out of the lakh. The gift holds good as to \r\nRs.90, 000, but is void as to Rs.10,000, which continue to belong to A. \r\n127. Onerous gift .– Where a gift is in the form of a single transfer to the same \r\nperson of several things of which one is, and the others are not, burden by an \r\nobligation, the donee can take nothing by the gift unless he accepts it fully. \r\n Where a gift is in the form of two or more separate and independent transfers \r\nto the same person of several things, the donee is at liberty to accept one of them \r\nand refuse the others, although the former may be beneficial and the latter onerous. \r\n Onerous gift to disqualified p erson.– A donee not competent to contract \r\nand accepting property burdened by any obligation is not bound by his acceptance. \r\n \r\n201As to limitation to the territorial operation of s. 123, see s. 1, supra. S. 123 extends to every cantonment in the Provinces – \r\nsee s. 287 of the Cantonments Act, 1924 (II of 1924); and published in the Gazette of India, Part IV, dated 23.2.1924, pages 3 -\r\n58. \r\nBut if, after becoming competent to contract and being aware of the obligation, he \r\nretains the property given, he becomes so bound. \r\nIllustrations \r\n(a) A has shares in X, a prosperous joint stock company, and also shares \r\nin Y, a joint stock company, in difficulties. Heavy calls are expected in respect of the \r\nshares in Y. A gives B all his shares in joint stock companies. B refuses to accept the \r\nshares in Y. He cannot take the shares in X. \r\n(b) A, having a lease for term of years of a house at a rent which he and \r\nhis representatives are bound to pay during the term, and which is more than the \r\nhouse can be let for, gives to B the lease, and also, as a separate and independent \r\ntransaction, a sum of money. B refuses to accept the lease. He does not by this \r\nrefusal forfeit the money. \r\n128. Universal donee .– Subject to the provisions of section one hundred and \r\ntwenty seven , where a gift consists o f the donor‟s whole property, the donee is \r\npersonally liable for all the debts due by \r\n202\r\n[and liabilities of] the donor at the time of \r\nthe gift to the extent of the property comprised therein. \r\n129. Saving of donations mortis causa and \r\n203\r\n[Muslim] law .– Nothing in this \r\nChapter relates to gifts of movable property made in contemplation of death, or shall \r\nbe deemed to affect any rule of \r\n204\r\n[Muslim] law \r\n205\r\n[* * * * * *]. \r\n206\r\n[CHAPTER VIII \r\nOF TRANSFERS OF ACTIONABLE CLAIMS. \r\n130. Transfer of actionable claim .– (1) The trans fer of an actionable claim \r\n207\r\n[whether with or without consideration] shall be effected only by the execution of an \r\ninstrument in writing signed by the transferor or his duly authorized agent, \r\n208\r\n[* * *] \r\nshall be complete and effectual upon the execution of su ch instrument, and \r\nthereupon all the rights and remedies of the transferor, whether by way of damages \r\nor otherwise, shall vest in the transferee, whether such notice of the transfer as is \r\nhereinafter provided be given or not: \r\n Provided that every dealing w ith the debt or other actionable claim by the \r\ndebtor or other person from or against whom the transferor would, but for such \r\ninstrument of transfer as aforesaid, have been entitled to recover or enforce such \r\ndebt or other actionable claim, shall (save wher e the debtor or other person is a \r\n \r\n202Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 60. \r\n203Substituted for the word “Muhammadan” by Federal Adaptation of Laws Order 1975 (P.O. 4 of 1975); and published in the \r\nGazette of Pakistan (Extraordinary), dated 1.8.1975, pages 435-467, Article 2 and Table of General Adaptations. \r\n204Ibid. \r\n205The words “or, save as provided by section 123, any rule of Hindu or Buddhist law” repealed by the Transfer of Property \r\n(Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab and its Depe ndencies, dated \r\n25.10.1929, pages 121-153, s. 61. \r\n206Substituted for the original Chapter VIII by the Transfer of Property Act, 1900 (II of 1900), assented by the Governor Genera l \r\non 2.2.1900, s. 4. \r\n207Inserted by the Transfer of Property (Amendment) Act, 1929 (XX of 1929); and published in the Government Gazette, Punjab \r\nand its Dependencies, dated 25.10.1929, pages 121-153, s. 62. \r\n208The words “and notwithstanding anything contained in section 123” repealed ibid. \r\nparty to the transfer or has received express notice thereof as hereinafter provided) \r\nbe valid as against such transfer. \r\n (2) The transferee of an actionable claim may, upon the execution of such \r\ninstrument of transfer as aforesaid, sue or institute proceedings for the same in his \r\nown name without obtaining the transferor‟s consent to such suit or proceedings and \r\nwithout making him a party thereto. \r\n Exception.– Nothing in this section applies to the transfer of a marine or fire \r\npolicy of insurance \r\n209\r\n[or affects the provisions of section 38 of the Insurance Act, \r\n1938\r\n210\r\n]. \r\nIllustrations \r\n(i) A owes money to B, who transfers the debt to C. B then demands the \r\ndebt from A, who, not having received notice of the transfer, as prescribe d in section \r\n131, pays B. The payment is valid, and C cannot sue A for the debt. \r\n(ii) A effects a policy on his own life with an Insurance Company and \r\nassigns it to a Bank for securing the payment of an existing or future debt. If A dies, \r\nthe Bank is entit led to receive the amount of the policy and to sue on it without the \r\nconcurrence of A‟s executor, subject to the proviso in sub -section (1) of section 130 \r\nand to the provisions of section 132. \r\n211\r\n[130A. Transfer of policy of marine insurance .– (1) A policy of marine insurance \r\nmay be transferred by assignment unless it contains terms expressly prohibiting \r\nassignment, and may be assigned either before or after loss. \r\n (2) A policy of marine insurance may be assigned by endorsement thereon \r\nor in any other customary manner. \r\n (3) Where the insured person has parted with or lost his interest in the \r\nsubject-matter insured, and has not, before or at the time of so doing, expressly or \r\nimpliedly agreed to assign the policy, any subsequent assignment of the policy is \r\ninoperative: \r\n Provided that nothing in this sub -section affects the assignment of the policy \r\nafter loss. \r\n (4) Nothing in clause (e) of section 6 shall affect the provisions of this \r\nsection.] \r\n131. Notice to be in writing signed.– Every notice of transfer of an actionable \r\nclaim shall be in writing, signed by the transferor or his agent duly authorized in this \r\nbehalf, or, in case the transferor refuses to sign, by the transferee or his agent, and \r\nshall state the name and address of the transferee. \r\n132. Liability of transferee of actionable claim.– The transferee of an actionable \r\nclaim shall take it subject to all the liabilities and equities to which the transferor was \r\nsubject in respect thereof at the date of the transfer. \r\n \r\n209Added by the Insurance Act, 1938 (IV of 1938), dated 26.2.1938, s. 121. \r\n210IV of 1938 \r\n211S. 130A inserted by the Transfer of Property (Amendment) Act, 1944 (VI of 1944), section 2. \r\nIllustrations \r\n(i) A transfers to C a debt due to him by B, A being then indebted to B. C \r\nsues B for the debt due by B to A. In such suit B is entitled to set off the debt due by \r\nA to him, although C was unaware of it at the date of such transfer. \r\n(ii) A executed a bond in favour of B under circum stances entitling the \r\nformer to have it delivered up and cancelled. B assigns the bond to C for value and \r\nwithout notice of such circumstances. C cannot enforce the bond against A. \r\n133. Warranty of solvency of debtor .– Where the transferor of a debt warran ts \r\nthe solvency of the debtor, the warranty, in the absence of a contract to the contrary, \r\napplies only to his solvency at the time of the transfer, and is limited, where the \r\ntransfer is made for consideration, to the amount or value of such consideration. \r\n134. Mortgaged debt.– Where a debt is transferred for the purpose of securing an \r\nexisting or future debt, the debt so transferred, if received by the transferor or \r\nrecovered by the transferee is applicable, first, in payment of the costs of such \r\nrecovery: secondly, in or towards satisfaction of the amount for the time being \r\nsecured by the transfer; and the residue, if any, belongs to the transferor or other \r\nperson entitled to receive the same. \r\n212\r\n[135. Assignment of rights under policy of insurance against f ire.– Every \r\nassignee by endorsement or other writing, of the policy of insurance against fire, in \r\nwhom the property in the subject insured shall be absolutely vested at the date of the \r\nassignment, shall have transferred and vested in him all rights of suit as if the \r\ncontract contained in the policy had been made with himself.] \r\n213\r\n[135A. Assignment of rights under policy of marine insurance .– (1) Where a \r\npolicy of marine insurance has been assigned so as to pass the beneficial interest \r\ntherein, the assignee of the policy is entitled to sue thereon in his own name; and the \r\ndefendant is entitled to make any defence arising out of the contract which he would \r\nhave been entitled to make if the action had been brought in the name of the person \r\nby or on behalf of whom the policy was effected. \r\n (2) Where the insurer pays for a total loss, either of the whole, or in the \r\ncase of goods, of any apportionable part, of the subject-matter insured, he thereupon \r\nbecomes entitled to take over the interest of the insured person in whatever may \r\nremain of the subject -matter so paid for, and he is thereby subrogated to all the \r\nrights and remedies of the insured person in and in respect of that subject -matter as \r\nfrom the time of the casualty causing the loss. \r\n (3) Where the insurer pay s for a partial loss, he acquires no title to the \r\nsubject-matter insured, or such part of it as may remain, but he is thereupon \r\nsubrogated to all rights and remedies of the insured person as from the time of the \r\ncasualty causing the loss, in so far as the insured person has been indemnified by \r\nsuch payment for the loss. \r\n (4) Nothing in clause (e) of section 6 shall affect the provisions of this \r\nsection.] \r\n \r\n212Substituted for the original section 135 by the Transfer of Property (Amendment) Act, 1944 (VI of 1944), s. 3. \r\n213S. 135A inserted ibid., s. 4. \r\n136. Incapacity of officers connected with Courts of Justice .– No Judge, legal \r\npractitioner or officer c onnected with any Court of Justice shall buy or traffic in, or \r\nstipulate for, or agree to receive , any share of, or interest in, any actionable claim, \r\nand no Court of Justice shall enforce, at his instance, or at the instance of any \r\nperson claiming by or t hrough him, any actionable claim, so dealt with by him as \r\naforesaid. \r\n137. Saving of negotiable instruments, etc.– Nothing in the foregoing sections of \r\nthe Chapter applies to stocks, shares or debentures, or to instruments which are for \r\nthe time being, by law or custom, negotiable, or to any mercantile document of title to \r\ngoods. \r\nExplanation.– The expression “mercantile document of title to goods” includes a bill \r\nof lading, dock -warrant, ware-house-keeper‟s certificate, railway -receipt, warrant or \r\norder for the delivery of goods, and any other document used in the ordinary course \r\nof business as proof of the possession or control of goods, or authorizing or \r\npurporting to authorize, either by endorsement or by delivery, the possessor of the \r\ndocument to transfer or receive goods thereby represented. \r\nTHE SCHEDULE \r\nYear and chapter Subject Extent of repeal \r\n (a) STATUTES \r\n27 Hen. VIII, c.10 Uses The whole. \r\n13 Eliz., c. 5 Fraudulent conveyances The whole. \r\n27 Eliz., c. 4 Fraudulent conveyances The whole. \r\n4 Wm. And Mary, c.16 Clandestine mortgages The whole. \r\n(b) ACTS OF THE GOVERNOR GENERAL IN COUNCIL \r\n214\r\n[* * *] [* * *] [* * *] \r\n215\r\n[* * *] [* * *] *[ * *] \r\nXI of 1855 Mesne profits and \r\nimprovements \r\nSection 1; in the title, the words “to \r\nmesne profits and,” and in the \r\npreamble “to limit the liability for \r\nmesne profits and”. \r\nXXVII of 1866 \r\n216\r\n[***] Trustee Act \r\nSection 31 \r\nIV of 1872 Punjab Laws Act So far as it relates to Bengal \r\nRegulations I of 1798 and XVII of \r\n1806. \r\n217\r\n[* * *] \r\n[* * *] [* * *] \r\n218\r\n[* * *] \r\n[* * *] [* * *] \r\nI of 1877 Specific Relief In sections 35 and 36, the words “in \r\nwriting”. \r\n \r\n219\r\n[* * *] \r\n \r\n \r\n214Items relating to Act IX of 1842, omitted by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960); and published \r\nin the Gazette of Pakistan (Extraordinary), dated 9.6.1960, pages 725 -845, s. 3 and 2 nd Schedule (with effect from the 14 th \r\nOctober, 1955). \r\n215Items relating to Act XXXI of 1854, omitted, ibid. \r\n216The word “Indian”, repealed by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951); and published in the \r\nGazette of Pakistan (Extraordinary), dated 12.5.1951, pages 340-382, s. 3 and 2nd Schedule. \r\n217Items relating to Act XX of 1875, repealed by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 12.5.1951, pages 340-382, s. 3 and 2nd Schedule. \r\n218Items relating to Act XVIII of 1876, repealed by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951); and \r\npublished in the Gazette of Pakistan (Extraordinary), dated 12.5.1951, pages 340-382, s. 3 and 2nd Schedule. \r\n219Part (c) omi tted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981); and published in the \r\nGazette of Pakistan (Extraordinary), dated 8.7.1981, pages 345-475, s. 3 and 2nd Schedule, at 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