Vol. 12 · pages 531–535

510 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES § PERSON 1. The word “person” according to the General Clauses Act includes any company or association or body of individuals whether incorporated or not. 2. That the word person includes a “juristic person” such as a corporation was a long established view. But it is now made clear by a special proviso which was added to Section 5 of the T. P. Act in 1929. 3. A corporation, which has power to acquire and hold land has also impliedly power to mortgage it for purposes of carrying out the object for which it was created. The powers of statutory corporations are generally speaking regulated by the act of incorporation, but where borrowing is necessary for the purposes of the corporation, it is not forbidden by the T. P. Act because it is a “person”. 4. By Hindu Law an Idol is recognized as a juristic person capable of holding property. 31 I. A. 203. But the possession and management of the property of the idol are vested in the Sebait. But as the ownership belonged to the idol and as the idol is a juristic person and therefore a living person, it can be a party to the mortgage. § REQUIREMENTS AS TO CAPACITY FOR CONTRACT 1. This is dealt with in Section 7. Two things are necessary under Section 7. (i) Person must be competent to contract, (ii) Person must be entitled to transferable property or authorized to dispose of transferable property. (i) § COMPETENT TO CONTRACT 1. Section 4 says that the Chapters and Sections of the T. P. Act which relate to contracts shall be taken as part of the Indian Contract Act. 2. Competency to contract must therefore mean competency in accordance with the Contract Act. Section 11, Every person is competent to contract who is of the age of majority according to the law to which he is subject, and

511THE TRANSFER OF PROPERTY ACT who is of sound mind and is not disqualified from contracting by any law to which he is subject. 3. Disqualification of an Insolvent. A word may be said as to the capacity of an Insolvent to deal with any property subsequently acquired by him. Now it is settled Law that an insolvent, who has not received his final discharge, cannot create a mortgage on immoveable property acquired by him. 17 Mad. 21 (But See 8 Cal. 556). § ENTITLED 1. The question is whether entitled means entitled as a full owner or as a limited owner. 2. That a full owner has the capacity to mortgage is obvious. The question is whether a limited owner has the capacity to mortgage ? 3. Person holding property on trust for sale without express power to mortgage. It may be laid down generally that a trust for sale containing a direction for absolute conversion does not authorize a mortgage. 4. Partner—can mortgage partnership property to secure partnership debt. 5. An executor or administrator under the Indian Succession Act is competent to transfer. 6. Hindu widow, a Member of a joint family and the Karta of a joint family, the Trustees of Hindu Religious Endowments. 7. The last two having their power and necessity. § TRANSFERABLE PROPERTY 1. The person whether he is a full owner or limited owner, the subject-matter must be transferable property. 2. What is transferable property ? (i) Section 6 says—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law. Every kind of property is transferable unless its transfer is prohibited by Law.

512 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) The exceptions fall under two heads (a) Merely personal rights cannot be transferred. (b) An interest in property restricted in its enjoyment to the owner personally cannot be transferred. 3. This shows that there may be a mortgage of moveable property. The T. P. Act does not deal with it because the contract deals with it as a pledge. It does not prohibit. § THE CONTENTS OF A MORTGAGE-DEED It is desirable that the mortgage-deed should specify certain particulars. 1. The debt or engagement, which is the subject-matter of the security, should be specified in the deed, otherwise the mortgagor may substitute one debt for another. 2. The time for the payment or performance must be specified in the deed. A stipulation that whole will be payable on payment of instalment 3. The deed should also contain a covenant to pay because there are various kinds of mortgages in which no debt is implied. 4. The property which is given in mortgage should be sufficiently described. It is true, extrinsic evidence is always admissible for the purpose of identifying any property, where the description is either indefinite or even actually misleading. Q.—Whether a mortgage can be created on a person’s property, if such property is not specifically described ? Whether a general mortgage is valid ? Q.—Whether a general pledge of all the property that the debtor then has, without any further distinction, can create a mortgage under our Law. 1. Distinction must be made between an instrument which contains sufficiently apt words to create a security and the one in which the debtor merely agrees that, if the money is not repaid, the obligee would be at liberty to recover the debt from the whole of the debtor’s property.

513THE TRANSFER OF PROPERTY ACT In the latter case, if they stand alone, merely give the obligee the ordinary right of a creditor to levy execution on the property of his debtor and do not create any pledge. Supposing the case to fall under the first head, is such hypothecation good to create a mortgage. In India, the validity of such securities has been questioned on the ground that a general hypothecation is too indefinite to be acted upon. (1) It is said that such hypothecations sin against the canon that a contract form must be definite and reliance is placed upon Section 29 of the Contract Act and Section 93 of the Evidence Act. (2) Vagueness is a misleading term. It may mean (1) either that the language is so indistinct that it cannot be understood or (2) that the property to which it relates is not specified in the contract. (3) Indefiniteness is, however, frequency confounded with what has been called wideness. The subject-matter of a contract may be wide and yet definite. On the other hand it may be narrow and yet indefinite. If a man says “I mortgage all my landed property”, it is wide but definite. If a man, who has several houses, says ‘I mortgage one of my houses’, the description is not wide but is still indefinite. (4) The word ‘specific’ in the T. P. Act is used to distinguish it from general and unless the property is specified in the deed, there can be no mortgage in Law. (5) The property must be specified although the Law does not say that it must be specified in any particular way. zz