Untitled 2
A mortgage is security for the payment of debt. mortgage is created by act of the parties by a written document providing security for the performance of a duty or the payment of the debt.
Sec. 58 transfer of property act.
3. Definition of mortgage:
“Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.
4. Essentials of mortgage:
Following are essentials of mortgage.
(i) Transfer of an interest. (ii) Specific property. (iii) Security for payment of loan.
5. Kinds of mortgage:
Following are various kinds of mortgage.
(i) Simple mortgage:
Simple mortgage is a transaction in which without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money and agree expressly or impliedly that in the event if this failing to pay according to the contract the mortgages shall have right to cause the mortgage property to be sold the proceeds of sale to be applied in payment of mortgage money.
(ii) Mortgage by conditional sale
Where the mortgagor ostensible sells the mortgaged property on condition that on default of the payment of the mortgage money on a certain bate the sale shall become absolute or on condition on such payment being made the sale shall become void or on condition that on such payment being made the buyer shall transfer the property to the sellor the transation is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale.
(iii) Usufuctuary mortgage:
Usufructuary mortgage is a type of mortgage where the mortgagor delivers the possession and right to enjoy an income of and from the property to the mortgagee.
(iv) English mortgage:
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transferred the mortgage property, absolutely to the mortgagee, but subject to a proviso that he will re-transfer is to the money as agreed, the transaction is called an English mortgage.
(v) Mortgage by deposit of title deed:
Where the person specify in his behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to great a security thereon, the transaction is called a mortgage by deposit of title deed.
(vi) Anomalous mortgage:
A mortgage which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgages and English mortgage by deposit of title deed is called anomalous mortgage.
6. Remedies for mortgagor:
Mortgagor has following remedies.
(i) Suit for sale. (ii) Suit for money.
7. How conditional mortgage is determined:
The court generally apply certain tests to determine whether the transaction was sale with a condition or repurchase or a mortgage by way of conditional sale.
(i) The existence of debt indicate a mortgage.
(ii) The long period of repayment indicate a mortgage.
(iii) A stipulation for interest on repayment indicated mortgage.
Resgistration officer
When a document is presented for registration to the registration officer, he endorse on every document presented before him, date, place or registration and signature of the person presenting such document and gives receipt for such document to person presenting the same.
2. Relevant provisions:
Sec. 52-62 registration act.
3. Duties of registering officers when document is presented:
The duties of registering officer when document is presented, are following.
(i) Endorsement on document:
The day hour and place of presentation and signature of every person presenting a document for registration shall be endorsed on every such document at the time of presenting it.
(ii) Duty to give receipt:
A receipt of such document shall be given by the registering officer for person presenting the same.
(iii) Duty to copy every presented document:
A document admitted to registration shall without delay be copied in the book appropriate according to the order of its admission.
(iv) Duty to issue certified copy:
It is the duty of the registering office to issue certified copy of the document registered in his office to person who applied for such copies.
(v) Certificate of registration:
The registering officer shall endorse there on a certificate containing the word registered together with the number and page of the book in which the document has been copied. such certificate shall be admissible for purpose of proving that the document has been duly registered in manner provided by this act.
(vi) Duty to return registered document:
The Duty document if registered completely by the registering officer shall be returned to the person who presented the document for the registration or the person nominated by him.
4. Conclusion:
To conclude I can say that registering officer is empowered under the registration act to register a document presented by a person. if he is not satisfied he can refuse to register the document. on his refusal to register the document. on his refusal to register the document different remedies are available.
1. Lease
A lease is a transfer of a right to enjoy the property of lessor is put in possession of the property. the rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in lease.
2. Relevant provisions:
Sec, 105, 108.
3. Definition of lease:
A lease of immovable property of right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration for a price paid or promised or of money a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms”.
4. Essentials element of lease:
Following are essentials elements of lease.
(i) Immoveable property:
Lease must relate to immoveable property.
(ii) Fixed duration of enjoyment:
Such enjoyment of right of property must be for fixed duration.
(iii) Transfer of right:
There must be transfer of such right of enjoyment.
(iv) Consideration:
It must be for consideration.
(v) Acceptance:
The transfer must be accepted by the transferee.
5. Kinds of lease:
Following are kinds of lease.
(i) Lease for certain time.
(ii) A periodic lease.
(iii) Lease in perpetuity.
6. How the lease come to end:
Lease of immoveable property come to end in the following ways.
(i) Laps of time:
By efflux of the time limited thereby.
(ii) Happening of a specified event:
Where such time is limited conditionally on happening of some event lease of immoveable property come to end.
(iii) Termination of the interest of lessor:
Where the interest of the lessor in property terminates on, or his power to dispose of the same extends only to, on the happening of such event.
(iv) Merger:
In case of the interest of the lessore and lessor in the whole of the property become vested at the same time in one person in the same right.
(v) Express surrender:
That is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement, between them.
(vi) Implied surrender:
Lease of immoveable property may come the end by implied surrender.
(vii) Forfeiture:
That is to say in the case the lessee breaks and express condition which provides that on breach thereof the lessor may re-enter or in the case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or the lessee is adjudicated an insolvent and lease provides that lessor may re-enter on the happening of transferee gives notice in writing to the lessee of his intention to determine the lease.
(viii) Expiration of time given in notice of quit:
On the expiration of a notice to determine the lease, or quit or of intention to quit, the property leased, duly given by one party to other.
1. Gift
The transfer of certain existing moveable or immoveable property is called gift if it is made voluntarily without consideration by one person to another person. a gift can also be revoked.
2. Relevant provisions:
Sec. 122, 123 transfer of property act.
3. Definition of gift:
Gift is transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee, and accepted by or on behalf of the donee.
4. Essentials of a valid gift:
Essentials of a valid gift are as under.
(i) Parties:
There are two parties in gift on is called donor and other is called donee.
(ii) Subject matter:
The subject matter of the gift may be movable or immovable property.
(iii) Existing property:
Such property must be exist at the time of gift.
(iv) Consideration:
Property is made without consideration.
(v) Voluntarily:
The transfer by gift should be made voluntarily.
(vi) Acceptance:
There must be acceptance of gift. acceptance must be made during the life time of donor.
5. Transfer how effect:
In case of immoveable property:
For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
In case of immoveable property:
For the purpose of making a gift of immoveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. such delivery may be made in the same way as goods sold may be delivered.
6. Concept of gift under Muslim law:
Under Muslim law, gift has following three essentials.
(i) Declaration of gift by donor.
(ii) Acceptance by donee.
(iii) Delivery of possession.
8. Conclusion:
To conclude I can say that, gift is an uncoditional transfer of property, made immediately and without any exchange or consideration by one person to another person and accepted by or on behalf of the latter. the gift under transfer of property and under Islamic law different.
1. Lis-Pendens:
A person can not be transferred during the pendency of a suit between the parties in the court. during the pendency of suit nothing new should be introduced.
2. Relevant provisions:
Sec. 52 transfer of property act.
3. Meaning of Lis-Pendens:
Lis means a cause to an action pendes means a pending suit.
4. Doctrine of Lis-Pendens:
According to Sec. 52 “during the pendency in any court having authority in Pakistan or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly or specifically in question, the property can not be transferred or otherwise dealt with by any party to the suit or proceeding so and to effect the right of any other party there to under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
5. Basis of doctrine of Lis-Pendens:
The doctrine of Lis-Pendens based on the maxim.
“Pendente lite ninic innovature.”
It means during litigation nothing new should be introduced.
6. Purposes of Lis-Pendense:
(i) Prevention of multi suit:
The important purpose of Lis-Pendence is to prevent multiplicity of suit.
PLD 1948 PC 117
It was held that broad purpose of Sec. 52 is to maintain the status Que unaffected by the act of any party to the litigation pending its determination.
7. Essentials of doctrine of Lis-Pendenes:
Following are essentials of doctrine of Lis-Pendense.
(i) Transfer during the pendency of suit.
Transfer by any party to the litigation should have taken place during the pendency of suit.
(ii) Competent court of jurisdiction:
Suit must be pending in the court of competent jurisdiction.
(iii) Suit should be non- collsive:
Suit should be non-collusive.
(iv) Suit relating to immoveable property:
Suit must the relating to immoveable property.
(v) Right to immoveable property must be directory:
It is necessary that right to immoveable property must be directly and specifically in question.
8. Exceptions:
Following exception when transfer can be made during the pendency.
(i) By operation of law.
9. Scope:
Doctrine of Lis Pendens bars the transfer or encumbering any right to immovable property during pendency of suit or proceeding before a court of law.
10. Conclusion:
To conclude I can say that it is a general rule known as Lis-Pendense in which transfer of immoveable property can not be made during the pendency of litigation in a court. this rule or doctrine protects the sanctity of the court.