Vol. 12 · pages 501–505

480 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Such persons are— 1. Subsequent mortgagee. 2. Surety. 3. Any person having an interest in the property. 4. A co-mortgagor. 5. Any other person with whose money the mortgage has been redeemed if the mortgagor has by a registered deed agreed to this. This is called the rule of subrogation. II. D OES THE LAW OF SALE PRESCRIBE ANY PARTICULAR MODE OF TRANSFER ? 1. The Law of Sale of Immovable Property does prescribe a mode of transfer. The mode of transfer is either Registration or Delivery of Possession. 2. Whether the appropriate mode of transfer in any particular case is Registration or Delivery of Possession depends upon two considerations— (i) Whether the immoveable property is tangible or intangible. (ii) Whether the Immoveable Property is worth more than Rs. 100 or is less than Rs. 100. 3. If the property is Intangible then the transfer can take place only by registration, no matter what the value of the property is. 4. If the property is Tangible property then (i) If it is worth more than Rs. 100 then the transfer must be by registration. (ii) If it is worth less than Rs. 100 then the transfer may be either by Registration or by delivery of possession. 5. It is clear that in all cases except one, Registration is the only method of effecting a sale. The case where option is given either to register or deliver possession is the case where the property is tangible and is less than Rs. 100 in value. 6. Registration and Delivery as alternative complimentary modes.—In this connection the following points may be noted :— (i) Where Registration is prescribed as the only mode of transfer, delivery of Possession is neither necessary nor enough to complete the transaction of sale.

481THE TRANSFER OF PROPERTY ACT (ii) Where delivery of possession is prescribed, Registration is not necessary to complete the sale. However, Registration without delivery will be enough to complete the sale. 7. No other mode of Transfer. —The provisions as to modes of transfer are exhaustive and a sale cannot be effected in any other way. Title cannot pass by admissin or by recitals in a deed or petitions to officers or entry in the record of rights. Admission that land has been sold, will not operate as an estoppel so as to do, away with the sale for a registered conveyance or delivery. 43 Cal. 790. 8. It is necessary to observe the prescribed modes of transfer :— (i) Ownership does not pass except by a transfer in the prescribed form. (ii) An unregistered deed is not enough (a) In cases where Registration is compulsory. (b) Also in cases where the value is less than Rs. 100 and the transfer is not made by delivery. 9. Meaning of tangible and intangible (i) Immoveable Property is either tangible or intangible. (ii) The distinction between tangible and intangible is analogous to the distinction made in English Law between a corporeal hereditament and incorporeal hreditament. (iii) A corporeal hereditament is an interest in land in possession i.e. a present right to enjoy the possession of land. An incorporeal hereditament is a right over land in the possession of another, which may be a future right to possession, or a right to use for a special purpose the land in the possession of another e. g. a right of way. (iv) The contract between tangible and intangible is a contract between the estate of one who is possessed of the land, the tangible thing and that of a man who has the mere right, the intangible thing, without possession of anything tangible. (v) A thing to be tangible must be capable of actual delivery. Sulaiman C.J. 50 All. 986. 10. Meaning of Delivery of Possession (i) Delivery takes place when the seller places the buyer, or such other person as he directs, in possession of the property. (ii) Delivery is an act which has the effect of putting the buyer in the possesssion of property.

482 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (iii) What amounts to Possession ? The question remains unanswered. Is it actual possession ? or Is it symbolical possession ? (iv) One view is that since delivery is prescribed for tangible property only what the Legislature intends is actual possession. (v) The other view is that it is used in a wider and ordinary sense because in the great majority of cases, land is in the occupation of a tenant or the buyer and physical delivery is therefore immpossible. (vi) The latter view is the generally accepted view, so that there is physical delivery, when the owner of property places the buyer in such relation to the land and its actual occupants as he himself occupies. 11. Ownership when transferred (i) Ownership passes upon delivery or registration. (ii) With regard to registration, the following points should be noted:— (a) Once registration is effected, the title relates back to the date of the execution. (b) A Registered sale-deed will not be defeated by another deed executed later but registered earlier. (c) The transfer will not be subject to lis pendens if the deed was executed before the suit but registered after the suit. (d) Although it is true that property does not pass i. e. ownership is not transferred until Registration is effected, it is not true to say that property passes as soon as the instrument is registered, for the true test is the intention of the parties. 3. Section 55 (3)— To deliver title-deeds : — 1. Title-deeds are accessary to the estate. They pass with the conveyance without being named. 2. This includes all deeds relating to the property conveyed in possession as well as in power. 3. The liability to deliver title-deeds also includes the liability to bear the cost of obtaining them. 4. Counterparts leases and Kabulayets are deeds of title accessory to the estate. 5. The duty to deliver title-deeds is not dependent upon the completion of the conveyance. This duty does not arise until the price has been paid. EXCEPTIONS : (i) When the seller retains parts of the property comprised in the deeds, he may retain the deeds but is under an obligation for

483THE TRANSFER OF PROPERTY ACT their safe custody and to produce them or give true copies when required. (ii) When property is sold in different lots—the purchaser of the lot of the greatest lot is entitled to the documents— subject to the same obligations as above. By an express covenant, it may be given to the purchaser of the largest lot i.e. in area. 6. The sub-section does not say what is to happen if the sales are at different times. BUYER’S LIABILITIES I. BEFORE CONVEYANCE 1. Section 55 (5) (a)— To disclose facts relating to the interest of the seller in the property materially increasing value. 1. Every purchaser is bound to observe good faith in all that he says or does in relation to the contract and must abstain from all deceipt, whether by suppression of truth or by suggestion of falsehood. 2. The buyer, however, is under no duty to disclose latent advantages as the seller is to disclose latent defects. 3. To this rule, matters of title are an exception. Although the seller’s title is ordinarily a matter exclusively within his knowledge, yet there may be cases where the buyer has information which the seller lacks. In such cases he must not make an unfair use of it. Illustration 1. —Summers vs. Griffiths. An old women sold property at an undervalue believing that she could not make out a good title to it while the buyer knew that she could. The sale was set aside. Illustration 2. —Ellard vs. Llandaff (Lord) The lessee obtained a renewal of a lease, in consideration of a surrender of the old lease, suppressing the fact (that)* the person on whose life the old lease depended was on his death-bed. * Inserted—ed.

484 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 2. Section 55 (5) (6)— To pay the Price. 1. The buyer is not bound to pay the price except on a complete conveyance to himself of the whole interest that he has purchased. 2. If the property is sold free from incumbrances and these are not discharged at the time of conveyance, the buyer is not bound to pay. 3. His remedies for getting rid of incumbrances are— (i) Under Section 18 (c) of the Specific Relief Act to compel the vendor tot discharge them, (ii) He may discharge it himself and set off the amount against purchase money. (iii) Recover it by subsequesnt suit against the vendor. 4. This sub-section imposes a personal liability on the buyer apart from the liability imposed by Section 55 (4) (b) on the property—52 All. 901. BUYER’S LIABILITIES II. AFTER CONVEYANCE 1. Section 55 (5) (c)— To bear loss, etc. 1. Under sub-section 55 (1) (c) the seller is to bear the loss between Contract and Conveyance. 2. After conveyance the buyer is the owner and the property is at his risk. He must therefore bear the loss. 3. This is different from English Law under which the contract for sale transfers an equitable estate and with it liability for loss or destruction. 4. The seller is liable for waste and if the seller has insured the property, the buyer can comple him to apply it for restoration. 2. Section 55 (5) (d)— To pay outgoings. 1. Before conveyance this liability falls upon the seller—55 (1) (g) after conveyance it falls on the buyer— Public charges, Rent, Interest and Incumbrances. 2. The liability is statutory and not merely contractual and therefore it is binding on a minor vendor on whose behalf the property is sold— 46 Mad. L. J. 464.