TRANSFER OF PROPERTY ACT ,1882

SECTION-101

SHRESHTH RASTOGI (B-20)

SHUBHAM DUBEY (C-9)
VISHVESH SHRIVASTAV (C-32)
ANURAG AWASTHI (C-51)
 INTRODUCTION
When a movable property is transferred inter-vivos
(between two living persons), Sales of Goods Act,
1930 comes into play. When an immovable property
is transferred from living person to living person(s),
the Transfer of Property Act, 1882 comes into play.
In case, the property is transferred from a dead
person to a living person(s), the law applied will be
the Law of succession. Should a person die without
leaving a will (intestate), the law of intestate
succession is applicable and in cases where a person
dies leaving a will, the law of testamentary
succession is applicable.
 TERMINOLOGY
• TRANSFER OF PROPERTY
• IMMOVABLE PROPERTY
• MORTGAGE
• CHARGE
• MERGER
 TRANSFER OF PROPERTY
• SECTION 5.- “Transfer of property” defined.—In
the following sections “transfer of property”
means an act by which a living person conveys
property, in present or in future, to one or more
other living persons, or to himself, 1[or to
himself] and one or more other living persons;
and “to transfer property” is to perform such act.
1[In this section “living person” includes a
company or association or body of individuals,
whether incorporated or not, but nothing herein
contained shall affect any law for the time being
in force relating to transfer of property to or by
companies, associations or bodies of individuals.
 IMMOVABLE PROPERTY
• Section 3(26) of General Clauses Act, 1897
It defines immovable property as it shall include
land, benefits to arise out of land, and things
attached to earth. Thus we find that while
Transfer of property excludes certain things.
General Clauses Act, includes certain things
under the head ‘immovable property’. By
combing both definitions, we may say that, the
term includes land, benefits to arise out of lands,
and things attached to the earth, except standing
timber, growing crops and grass.
 MORTGAGE
• It contained under SEC. 58 TO 99 OF TRANSFER OF
PROPERTY ACT 1882
58(a) “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-
money” and “mortgage-deed” defined.- A mortgage is
the transfer of an interest in specific immoveable
property for the purpose of securing the payment of
money advanced or to be advanced by way of loan, an
existing or future debt, or the performance of an
engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a
mortgagee; the principal money and interest of which
payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which
the transfer is effected is called a mortgage-deed.
 CHARGES
• SECTION 100 of TRANSFER OF PROPERTY ACT 1882
• “Where immoveable property of one person is by act of parties
or operation of law made security for the payment of money to
another; and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and
all the provisions hereinbefore contained which apply to a simple
mortgage shall, so far as may be, apply to such charge. “
• It says that where immovable property of one person is, by act of
parties or operation of law, made security for the payment of
money to another, and the transaction does not amount to
mortgage, the latter person is said to have a charge on the
property, and all the provisions hereinbefore contained which
apply to simple mortgage shall, so far as may be, apply to such
charge.
 MERGER

• Combination of to or more units into a single

entity here on survives and the other loses
their existence . The survivor acquires the
assets as well as liabilities of the merged
entity.
 SECTION 101
• No merger in case of subsequent encumbrance-
Any mortgagee of, or person having a charge upon,
immoveable property, or any transferee from such
mortgagee or charge-holder, may purchase or
otherwise acquire the rights in the property of the
mortgagor or owner, as the case may be, without
thereby causing the mortgage or charge to be merged
as between himself and any subsequent mortgagee of,
or person having a subsequent charge upon, the same
property; and no such subsequent mortgagee or
charge-holder shall be entitled to foreclose or sell such
property without redeeming the prior mortgage or
charge, or otherwise than subject thereto.
 Umade Rajaha Raje Damara Kumara
... vs Panaganti Parthasarathy (1942)
2 MLJ 47
• The mortgagee in this case also acted in one capacity
throughout and having been authorised to sell in certain
circumstances sold the property really to himself. This case
would not be an authority for the proposition that the
representative of a mortgagor would not be, after he came
to occupy that position, competent to renew a mortgage or
execute a conveyance in favour of the representative of a
mortgagee who had held a mortgage before he came to
occupy the position of the mortgagor's representative. It is
unnecessary for us to go into the cases covered
by Section 101 of the Transfer of Property Act again. But
independently of Section 101, these cases do not seem to
be any authority for the proposition contended for.
 CONCLUSION
• A charge gives rise to a new proprietary interest in favour of
the lender over the borrower’s property. In contrast to a
mortgage there is no transfer of the borrower’s existing
interest but the creation of a new burden upon the
borrower’s ownership. This interest by way of charge
appropriates the borrower’s property to the repayment of
the loan. In other words it entitles the lender to look to the
borrower’s property should the borrower fail to repay the
loan, for instance by insisting that the property to be sold.
When the loan is repaid the charge will cease as there is no
longer any appropriation.