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Law Notes Transfer of Property Act

Charges, notice and tender- sec- 100-104 TPA

Introduction:-

In the, chapter IV of the Transfer of property act discussed the topic of charges, notice and tender under the section 100- 104. 

Section 100:- charges

As stated in the chapter IV under the Transfer of Property Act, 1882 Charge meaning is wherever the immovable property is transferred by one party for the security of payment of money to the another party. The transaction does not amount in the direction of a mortgage as well as, in this all the provisions which are appropriate to uncomplicated mortgages shall be relevant to the section 100 (charge). This section does not transfer any interest in favors of the charge holder excluding he has the right to recover his money as of that property. 

Essentials of the section 100:- 

  • A charge can be formed either by an act of parties or throughout the operation of law.
  • It is formed while a security for payment of money.
  • The transaction which is formed does not amount in the direction of a mortgage.
  • A charge can be obligatory by a suit.

In this a charge may be extinguish either by an act of parties by means of the release of debt otherwise through an enhancement otherwise by a merger.

Section 100 of this section says that charge is basically known as where the immovable property of one person is through an act of parties or else procedure of law completed the security intended for the payment of money on the way to another, 1by the side of with the transaction does not amount to a mortgage, the subsequently person is said to have a charge lying on the property.

not anything in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced aligned with any property in the hands of a person to whom such property has been transferred for consideration and with no notice of the charge.

It may be that in a meticulous case, there may not be an actual mortgage of immovable property, in the sense with the intention of any interest in the property is transferred to the transferee and up till now a person may have a right to recover debt from that property.

Section 100 also says that charge oblige not be in writing. No meticulous variety of words is essential is that there must be an understandable purpose to make available property as security for payment of money in present.

Section 101:- No merger in case of subsequent encumbrance

According to the chapter IV of the Transfer of Property Act, section 101 says that the mortgagee of immovable property or else the individual who is having a charge lying on the immovable property or the transferee from such mortgagee or charge-holder may get hold of the rights in the property of the mortgagor without merging the mortgage or the charge as among:

  1. Himself and the consequent mortgagee of the same property.
  2. A person having charge in the lead the same property.

Corresponding, subsequent mortgage or charge cannot be sold or else exclude devoid of redeeming the preceding mortgage or charge.

Section 101 of this act says that discussed that any mortgagee of, or person having a charge ahead, immovable property, or any transferee as of such mortgagee or charge-holder, may acquire or else get hold of the rights in the property of the mortgagor or owner, since the case may be, lacking in that way causing the mortgage or charge in the direction of be merged while among himself along with any succeeding mortgagee of, otherwise person having a ensuing charge in the lead, the equivalent property and no such succeeding mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or else than subject thereto.

Section 101 of this act put an end to the doctrine of merger in basic terms. We can also say that, the aim of Section 101 is to maintain active a charge. In this a contract scanty the preceding mortgages of his charge ahead the property when he turns into its owner beneath a sale have to be a clear one.

Section 102:- the service or tender on or to agent.

Corresponding to this act, section 102 says that, where the someone on or to whom any notice or tender is to be serve up or else, does not be inherent in in the district in which the mortgaged property before several constituent of that position, service or tender on or to an agent holding a general power of attorney on or after such person by, otherwise accordingly certified to recognize such service otherwise tender shall be considered as adequate.
in this wherever no individual or agent on whom such notice be supposed to be served can be found or else is acknowledged to the individual requisite in the direction of provide the notice, the latter person may be appropriate to whichever court in which a suit might be brought for redemption of the mortgaged property, and such court shall direct in what method such notice shall be served.

On condition that, in the matter of a notice obligatory by the section 83, in the matter of a deposit, the relevance shall be made in the direction of the court in which the deposit has been made.
and wherever no person or agent to whom alike tender be supposed to be made can be found or is well-known to the person wishing to create the tender, the later person may deposit in any Court in which a suit might be conveyed intended for deliverance of the mortgaged property the amount sought after to be tendered, along with alike deposit shall have the consequence of a tender of such amount.

Section 103:- Notice, etc, to or by the person incompetent to the contract.

Here, section 103 of the transfer of property act discussed that, wherever a notice is to be served on or by, or a tender or deposit made or acknowledged out of court by, and any person lacking ability to contract, such notice may be served on or by or tender or deposit made, accepted or taken, by the legal curator of the property of such person; 

Nevertheless where there is no alike keeper, and it is mandatory or enviable in the interest of corresponding person that a notice ought to be served or a tender or deposit complete under the necessities of this Chapter, function may be complete to any court in which a suit might be brought intended for the redemption of the mortgage to select a guardian ad litem intended for the reason of helping otherwise getting service of such notice, or assembly or accommodating such tender, or making or taking out of court such deposit, as well as intended for the presentation of the entire important acts which could to be done by such person proviso he were capable to contract; 

Along with the provisions of the order XXXII in the First Schedule to the Code of Civil Procedure, as a result faraway as may be, be relevant to such purpose along with the parties to that with to the guardian appointed here underneath.

Section104:- the power to make rules.

Section 104 of this act says on the subject of the High Court may, from time to time and formulate rules dependable by way of this Act for carrying out, in itself furthermore in the Courts of Civil Judicature subject to its superintendence, after that the provisions contained in this section of transfer of property act.

Conclusion

The perception of mortgage is one of the vital concepts under the Transfer of Property Act, 1882 as it helps in protected the debt to the mortgagor and also helps in favor the property as soon as the mortgagor pays back the amount due to the mortgagee.

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