Vol. 12 · pages 526–530

505THE TRANSFER OF PROPERTY ACT a mortgage for the amount. The mortgagor retained the deed in his custody for several years and then died an insolvent. After his death the document was discovered in a chest containing his title-deed. It was contended that there was no binding mortgage, because there had been no delivery of the deed. But the contention is overruled, on the ground that there was no evidence to show that the deed was not intended to operate from the moment of its execution. 6. There seems to be an idea that if the deed is delivered to the other party, it must have immediate operation and cannot in point of law be delayed in its operation. But it is now established that evidence is admissible to show the character in which the deed is delivered to a person though he is himself a party taking under it and not a stranger. (1897) 2 Ch. 608. 7. Where an instrument is to come into operation, not immediately, but only upon the performance of some condition, it is known as an escrow which simply means a scrawl, or writing, that is not to take effect till a condition precedent is performed. 8. Mere execution is not enough. There must be intention to give it immediate effect. Delivery means an intention to give immediate effect. That intention is independent of the process of delivery or non-delivery. 9. Where a document intended to be executed by one or some only and others refuse to complete it the question whether it is binding on those who have executed it, is one of the intention of the parties to be gathered from the facts of each. § MATERIAL ALTERATION IN A DEED—EFFECT OF 1. A material alteration in a deed made without the consent of the mortgagor and with the privity and knowledge of the person who relies upon it, would altogether destroy the efficacy of the deed. 2. If blanks are left to be filled up with merely formal matters the mortgagee may fill them up without imperilling his rights. (1905) 2 Ch. 455.

506 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 3. The question what constitutes a material alteration within the meaning of the rule has given rise to some difference of opinion. 10 C. W. N. 788 (of Mukerji J.) Any change in an instrument which causes it to speak a different language in legal effect from that which it originally spoke, which changes the legal identity or character of the instrument either in its terms or the relation of the parties to it, is a material change, or technically, an alteration, and such a change will invalidate the instrument against all parties not consenting to the change. An addition of a party to a contract constitutes a material alteration. § IMPORTANCE OF THE THREE FORMALITIES 1. The absence of any of three formalities is fatal to the validity of the transaction. The word is only. 2. Not only the formalities must exist but they must be valid, i. e., in accordance with law. 3. Not only must there be signature but the signature must be valid. 4. Not only must there be attestation but the attestation must be valid. If attestation is invalid, the deed cannot operate as a mortgage—e.g. attestation without the presence or acknowledgement by the executor. 5. Not only must there be registration but the registration must be valid. Thus (i) If the property is so incorrectly described that it cannot be identified—18 Cal. 556 4 . B . (ii) When the deed is registered in a circle in which the property is not situate. 29 Cal 654. (iii) Where the deed is not presented for registration by the proper person the mortgage is invalid. 58 I. A. 58 Two other questions have to be considered in connection with the subject-matter of Formalities.

507THE TRANSFER OF PROPERTY ACT 1 IS EXECUTION OF THE DEED ENOUGH TO GIVE EFFECT TO THE MORTGAGE ? 1. It is hardly necessary to state that the mere execution of a deed is not enough if it is not intended to operate as a binding agreement. 2. This is expressed in English Law by the formula that a deed must be delivered. 3. This may not be clear unless one understands what meant by ‘delivered’. There is nothing mysterious about the delivery of a deed which does not represent any technical process, but only indicates that the instrument is to come into immediate operation. 4. Shephard in his Touchstone speaks of delivery as one of the requisites of a good deed and adds that it is a question of fact for the jury. CASE LAW I. SUIT AGAINST SECRETARY OF STATE (1906) 1 K. B. 613 ; 5 Luc. 157; 37 Mad. 55. II. POSITION OF THE CROWN 1920 A.C. 508 ;1932 A. C.28 ; 1929 A. C.285 ; 8 App. cases 767 ; 8 M.I.A. 500 ; 1903 App. cases 501. III. PARAMOUNTCY (1792) 2 Ves. 60 ; 13 M. P. C. C. 22 ; (1906) 1 K. B. 613. British India = Section 3(17) General Clauses Act, 1897. Whole of British India = includes the Scheduled Districts. 52 Mad. 1. Any newly acquired territory becomes an annexation part of British India—Onsley vs. Plowden (1856—59) 1 Bom. 145. But it retains its laws until altered by the Crown or Legislature. 19 Bom. 680 (686) following 1 M. I. A. 175/271. Acts such as Stamp Act passed by the Indian Legislature have been extended to many places which though outside British India are under British Administration (e. g. Bangalore, Hyderabad assigned districts: Baroda cantonment: Mount Abu, etc.) by

508 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES notifications under Sections 4 and 5 of the Foreign Jurisdiction and Extradition Act, 1879, and the Indian (Foreign Jurisdiction) Order in Council, 1902. § CAPACITY TO GIVE OR TAKE A MORTGAGE 1. A mortgage is a transfer of property and also a contract. It must therefore satisfy the requirements as to capacity laid down for a valid transfer of property and for a valid contract. § REQUIREMENTS AS TO CAPACITY FOR A VALID TRANSFER OF PROPERTY 1. Transfer of property means an act by which a living person conveys property to one or more other living persons or to himself or to himself and one or more other living persons—Section 5. 2. A mortgage being an act of transfer of property, the parties to an act must be living persons. 3. When it is said that both persons must be living it is obvious that the intention is to make two distinctions :— (i) Between a transfer inter vivos and a will. (ii) Between a transfer and the creation of an interest (Sections 13,14, 16 and 20). 4. A will operates from the death of the testator. A mortgage therefore cannot be created by a will. It must be created inter vivos. A will does not operate as a transaction between two living persons. 5. A mortgage is a transfer of an interest. Sections 13, 14, 16—20 permit that an interest may be created in favour of a person not in existence at the date of transfer. But a mortgage is not the creation of an interest, but it is the transfer of an interest. § Living. 1. What is the meaning of the word Living ? Does it mean one who has not suffered natural death or does it mean that a person has not suffered civil death ? There may be no natural death although there may be civil death.

509THE TRANSFER OF PROPERTY ACT Illus. Sannyasi—Buddhist. Where a person enters into a religious order renouncing all worldly affairs, his action is tantamount to civil death. Illus. Sannyasi—Mulla.p. 113. Buddhist Monk—7. Rang. 677.I. B. 2. A person who is civilly dead is not dead for the purpose of the T. P. Act. 3. Living as defined in explanation 3 to Section 299, I. P. C. would indicate that some part of its body must have been brought forth. But under the Hindu Law a son conceived is equal to son born— Mulla p. 319. A person may be living for the purpose of the Hindu Law and may not be for the purpose of T. P. Act. 16 Mad. 76 ; 37 All 162 ; 58 Mad. 886.* 4. Another case of a person in a like position is that of a convict. A convict under the English Law, since he cannot enter into a contract or dispose of property, has no power to lend or borrow money on mortgage ; but the administrator of a convict may mortgage any part of the convict’s property. A convict is defined in Section 6 of the Forfeiture Act 33 and 34 Vict. Ch. 23, 1870 : to mean any person against whom judgment of death, or of penal servitude, shall have been pronounced or recorded by any Court of competent jurisdiction in England, Wales or Ireland upon any charge of treason or felony. 5. What about the position of a convict in India. * (Page left blank in the Ms—ed.) * Even under English Law a child enventre son mere is deemed to be a living person. Cases referred to in 58 Mad. 886. (1903) 2 Ch. 411 (1909) 1 K. B. 178 (1907) 2 K. B, 422 (1926) 96 L.I.K.B. 250. Contra. 10 Lah. 713.