Court : Karnataka
Reported in : ILR2006KAR997; 2006(6)KarLJ451
..... privity of contract between the appellant and the mortgagors. accordingly, sought for dismissal of the appeal.section 63a of the transfer of property act, 1882 reads thus:63-a. improvements to mortgaged property-(1)where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be ..... entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2 ..... would arise for consideration in this appeal are:i) whether both the courts below have considered the principles laid down under section 63a(1) and (2), 72, 76(d) of the transfer of property act of 1882?ii) whether both the courts below have committed any error in not considering the documentary evidence produced with regard to repairs ..... the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.section 72 of the said act reads thus:'72. rights of mortgagee in possession-a mortgagee may spend such money as is necessary- (a) for the preservation o f the mortgaged property from destruction, forfeiture or sale;(b) for supporting the .....Tag this Judgment!
Court : Kerala
Reported in : AIR1994Ker371
..... 1983-d are taken up for examination, they cannot be regarded as usufructuary mortgages as defined under section 58(d) of the transfer of property act, 1882. document ext. a1, firstly, fixes the time to enjoy properties for a term of 25 years on illidarwar rights; secondly, creates a personal covenant to pay value of improvements as decided by four respectable persons, and thirdly, after the period of ..... the contrary, such improvements were necessary to preserve the property from destruction or deterioration, the mortgagor shall ..... from them. the right to redeem, under section 60 of the act, accrues when the principal mortgage money becomes due, when only the possession of the property is to be delivered. however, a look at section 62 of the act, it accrues only when the mortgage money is paid, as per the provisions thereof. with regard to the improvements to mortgaged property, under section 63a, in the absence of the contract to .....Tag this Judgment!
Court : Chennai
..... of the transfer of property act is a special section which refers to 'improvements to mortgage property ..... properties and they cannot be compelled to purchase the same. 65. section 51 of the transfer of property act, 1882 refers to 'improvements made by bona fide holders under defective titles'. the ambit of section 51 of the transfer of property act, 1882 is limited, since it applies to a transferee who in good faith believes himself that he is absolutely entitled to. section 51 of the transfer of property act, 1882 is a general one whereas section 63a ..... their rights, if any, as per section 51 of the transfer of property act, 1882 (relating to improvements etc.) by means of separate legal ..... '. 66. d.w.1, in his cross examination (before the trial court), has deposed that they have purchased the lands from the respondents/ plaintiffs mother pavakkal. the appellants/defendants have not taken the plea before the trial court, in their written statement, that they have purchased the properties .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1956Bom575
..... that the transaction was not in the nature of a mortgage.4. section 63a, transfer of property act provides that a mortgagee is entitled to the amount spent by him for improvements to the mortgaged property only in the eventuality mentioned in sub-section (2) of the section. sub-section (2) of section 63a in so far as it is material provides 'where any such improvement was effected at the cost of the mortgagee and ..... mortgagor'. the mortgagee has not claimed that he improved the property in the circumstances mentioned in sub-section (2) of section 63a.5. section 72 transfer of property act enables a mortgagee to spend such money as is necessary when he is in possession of property in certain circumstances; and clause (b) provides that he may spend money for preservation of the mortgaged property from destruction, forfeiture or sale, and if he ..... was necessary to preserve the property from destruction or deterioration or was .....Tag this Judgment!
Court : Mumbai
Reported in : 109ITR802(Bom)
..... us. section 108(h) of the transfer of property act, on which mr. joshi relied, enacts that the lessee has the right, after the determination of the lease to remove, at any time whilst he is in the possession of the property but not afterwards, all things which he has attached to the earth, and the commentary of sir dinshah mulla states in transfer of property act, 1882, 6th ..... edition, page 701, that if the lessee once quits possession, he cannot return and the fixtures become the property of the lessor. strong reliance was sought to be placed by mr. joshi on that observation of sir dinshah mulla ..... , and this decision also, therefore, cannot be of any assistance to mr. joshi for propounding the view which he submitted in regard to the true interpretation of section 108(h) of the transfer of property act. we have not been referred to any decision which categorically lays down the proposition that, by reason of the failure of the lessee to remove the fixtures which ..... the moneys of the flat-owners who were in actual possession of the respective flats in the building. i have, therefore, come to the conclusion that neither section 108(h) of the transfer of property act, nor any principle analogous thereto, can be of any assistance to the revenue for the purpose of contending that the assessee-company is the owner of the building .....Tag this Judgment!
Court : Kolkata
Reported in : (1899)ILR26Cal166
..... this that it is not open to the decree-holder to ask in the first instance for the sale of properties other than the properties mortgaged before exhausting the mortgaged properties, and without obtaining an order such as is prescribed by section 90 of the transfer of property act.9. the result is that this appeal must be allowed, the decree-holder being at liberty to proceed against ..... that the decree of 1882 is in substance a decree for the sale of the mortgaged properties. it sets out those properties, and directs that the sum decreed should be realized from them, which can only mean by the sale of them, and that; was the relief asked for in the suit. assuming that sections 88 and 89 of the transfer of property act, which came into ..... of the decree which then came before the court for consideration, expressed himself as follows: 'in my opinion this was a mortgage-decree, though not in the form prescribed by the transfer of property act, which came into force on the 1st july 1882, but in the form in which, as i understand, such decrees had been for many years, and were drawn up ..... the mortgaged properties in the first instance, and then to take such steps as he may be advised, to sell the other properties of .....Tag this Judgment!
Court : Chennai
Reported in : AIR1942Mad44; (1941)2MLJ520
..... the sixth defendant made certain improvements on the property purchased by him and one of the grounds urged on behalf of the appellant before us is that the lower court was wrong in ignoring the subsequent accession to the mortgaged property and depriving the plaintiff of the advantage which he would get under section 70 of the transfer of property act which entitled him to such ..... the facts of this case will be what was in force before the amendment of the transfer of property act in 1929. section 82 of the transfer of property act before the amendment read as follows: where several properties, whether of one or several owners, are mortgaged to secure one debt, such properties are, in the absence of a contract to the contrary, liable to contribute rateably to ..... for the 2nd item would be rs. 100 x 5100/10654 bearing the principle contained in section 70, transfer of property act in mind, the plaintiff's security must be held to extend to the whole of the property purchased by the sixth defendant along with the improvements effected thereupon but inasmuch as the amount decreed in favour of the plaintiff has been, we ..... but by a mortgagee for the recovery of his money by the sale of the mortgaged property, the lower court was wrong in applying section 82 of the transfer of property act and in assessing the value of the various mortgaged properties as it prevailed at the time when they were mortgaged with the plaintiff in 1916 and in 1918. the appellant's contention is that he .....Tag this Judgment!
Court : Mumbai
Reported in : 2007(5)ALLMR690; 2007(5)MhLj791
..... view of the fact that the plaintiff did not have an opportunity to prove that he was the bona fide purchaser for value without notice, the provisions of section 53a of the transfer of property act cannot be invoked at least to protect the possession of the defendants, especially when the defendants are not the proposed transferees but claim title in themselves. the substantial ..... the plea was not specifically raised, the trial as well as the appellate court did not consider the applicability of the provisions of section 53-a of the transfer of property act to the facts of the case. in face, section 53-a of the transfer of property act could be invoked by the defendant only in a case where the defendant was put in possession of the ..... -1973. however, there was nothing else in the written statement to show that the defendants had claimed protection of their possession in view of the provisions of section 53-a of the transfer of property act. a bare reading of the written statement in the entirety clearly showed that the defendants had denied the title of the plaintiff and had claimed title of the ..... framed in the present second appeal does not, in fact, arise for consideration as the defendants had not specifically pleaded about the applicability of the provisions of section 53-a of the transfer of property act and the facts leading thereto. it was then submitted on behalf of the respondent that a perusal of the plaint as well as the written statement clearly showed .....Tag this Judgment!
Court : Chennai
Reported in : AIR1995Mad172
..... order ofthe learned single judge is unsustainable in law and contended that the learned single judge totally misconstrued the principle and meaning of part performance as stated in, section 53a of the transfer of property act 1882 which provision can be used only as a defensive weapon as a shiaid and not as an offensive weapon as a sword. he further contended that an agreement ..... charge on such property.' considering the effect of section 53 and section 54 of the transfer of property act, 1882, as bench of this court, to which one of us (mishra, j.) was a member has stated- 'these two provisions together leave no manner of doubt that there ..... facts has used the expression, 'agreeement of sale', it is obviously for 'agreement for sale' which is defined under section 54 of the transfer of property act, '1882 as follows: 'contract for sale:-- a contract for the saleimmovable property is a contract that a sale of such property shall take place on terms settled between the parties. it does not, of itself, create any interest in or ..... vis such a transfer. where suit is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly, a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum of the improvement thereof for construction .....Tag this Judgment!
Court : Kerala
Reported in : AIR1959Ker67
..... dispute, so as to prejudice the opposite party: (see passages from their lordships' judgment extracted at page 224 of mulla's transfer or property act, 1956 edition). the explanation to section 52, transfer of property act, is wide enough to include ail transfers and dealings with the property made during the pendency of the suit in the trial and appellate courts as well as during the execution proceedings.17 ..... case, those lines of reasoning yield a very safe conclusion. we have no doubt at all but that the partition of january 10th, 1902, falls within the mischief of section 52, transfer of property act, and cannot be allowed in any way to affect the plaintiff's right, either under his redemption decree or in execution. that being so, and the partition with all ..... a suit against the karnavan for money borrowed by him for tarwad purposes and obtained a decree in 1879. a partition took place in the tarwad in 1882, and in 1891 the creditor attached a property which had been allotted in the partition to one of the junior members and brought it to sale. the court held that the execution sale was ..... transfer of property act only enjoins that the transfer or dealing with the property shall not affect the decree-holder's rights under the decree and does not obviate the necessity to implead the transferee or the person in whose favour the property has been dealt with after the transfer.the decree-holder's right under the decree is not merely to get the property after paying the mortgage .....Tag this Judgment!