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TOPA Questions and Answer
TOPA Questions and Answer
Discuss the provision of the topa 1882 relating to transfer for the benefit of
unborn person.
Answer:
Introduction
The rules with respect to the transfer of property for the benefit of unborn person
and rule against perpetuity are mainly governed and operated under section 13 and
section 14 of The Transfer of Property Act, 1882.
Unborn child refers to an individual who is not born yet or is not in existence and
there is nothing in the law to prevent the unborn child owning property before he is
born.
The transfer of property takes places between two living persons which means that
there cannot be a transfer to a person who is not born yet or not in existence. This
is the reason why section 13 of TOPA uses the term ‘for the benefit of’ and not
transfer ‘to’ unborn person.
A child in a mother’s womb is considered to be a person competent of the transfer.
Therefore a property can be transferred to a child in her mother’s womb because
the child exists but not to an unborn person who does not even exists in the womb
of her mother.
With every transfer of property, there is a transfer of interest which states that as
soon as the property gets transferred in the name of transferee the interest is vested
in the transferee. Therefore it is necessary that the transferee should be in existence
when the transfer is made. This is against the very concept of an interest.
For a transfer of property for the benefit of the unborn person two conditions are
necessary to be fulfilled:
Section 13 is enacted for the valid transfer of property to an unborn person. The
procedure for the same are as follows:
1. Any person who intends or wishes to transfer the property for the benefit
of an unborn person should first make a life estate in favour of a living
person and after this, an absolute estate in favour of the unborn person.
2. Till the time, in whose favour the life estate created is alive, would hold
the possession of the property, and enjoyment of the property.
3. If the person who was unborn during the time of creation of life estate, is
born, the title of the property gets immediately transferred to the person
born but he’ll get the possession only on the death of the life estate holder.
Object
The main objective of this policy is the proper and free regulation of property both
for trade and commerce as well as for the advancement of property which is useful
for society. The object is to see that the property isn’t tied-up and the issue of
ceaselessness can be anticipated.
1. The minority period in both the countries is different. The minority period
in India is 18 whereas the minority period under the English law is 21
years.
2. The English law states that the property need not be absolutely given to
the unborn person whereas under the Indian law the property should be
absolutely transferred to the unborn.
3. Under English law, the period of gestation is a gross period whereas under
the Indian Law the period of gestation should be an actual period.
4. Under the Indian law, the unborn person must come into existence before
the death of the last life estate holder but under the English law, the
unborn person must come into existence within 21 years of the death of
the last life estate holder.
Exceptions
The transfer of property act has made possible the transfer of property for the
benefit of an unborn person. Before the transfer of property act, the rule under the
Hindu and Muslim law was that the gift given to a person who is not born or not in
existence was void. The position under the Muslim law keeps being the same.
However, for Hindus, the rule was modified by various of enactments to bring it
conformity with the section of transfer of property act. There have been parallel
provisions made under the Indian succession act, 1925, which allows bequest for
the person who is not born or unborn. Section 113 of Indian Succession Act
1925(IS Act), applies to legacies created for the person unborn and contain a
provision almost identical to section 13 of the transfer of property act.
Conclusion
2. Define the morgage and explain the different kinds of mortgage and
rights and liabilities of mortagagee in details.
Mortgage:
A mortgage is the transfer of an interest in the specific immovable property to
secure the payment of money advanced or to be advanced by way of loan, an
existing or future debt, or the performance of an engagement which may give rise
to a pecuniary liability.
Characteristics of Mortgage
7. In case the mortgager fails to repay the loan, the mortgagee gets the right to
recover the debt out of the sale proceeds of the mortgaged property.
3. Usufructuary mortgage,
4. English mortgage,
6. Anomalous mortgage
Simple mortgage
However, the mortgagee cannot directly sell the property. The sale must be
through the intervention of the court.
The mortgagee will have to obtain first a decree from the court for the sale of the
mortgaged property since the words used are “cause the mortgaged property to be
sold”.
Mortgage by conditional sale is one where the mortgagor ostensibly sells the
mortgaged property on the condition that –
On default of payment of the mortgage money on a certain date the sale shall
become absolute, or
On such payment being made the buyer shall transfer the property to the
seller.
Usufructuary mortgage
To receive the whole or any part of the rents and profits accruing from the
property, and
English Mortgage
The transfer is subject to this condition that the mortgagee will re-transfer
the property to the mortgagor upon making payment of the mortgage money as
agreed.
This mortgage does not require registration. It is the most popular with banks.
Anomalous mortgage
It may, therefore, take various forms depending upon custom, local usage, or
contract.
Based on the transfer of title to the mortgaged property, mortgages are divided into
types namely:
1. Legal Mortgage
2. Equitable Mortgage
Legal Mortgage
Equitable Mortgage
Advantages
If the mortgagor fails to repay, the mortgagee must get a decree for the sale
of the property. Getting a degree is expensive and time-consuming.
The borrower may hold the title deeds not on his account, but in the capacity
of a trustee. If an equitable charge is created, the claim of the beneficiary under the
trust will prevail over the equitable mortgage.
Right to sue for Mortgage Money: – A mortgagee has the right to sue for
the mortgage money where the mortgagor bind himself to repay, where the
mortgaged property wholly and partially destroyed, where the mortgagee is
deprived of his security due to a wrongful act and where the mortgagor has
failed to deliver possession of the property to the mortgagee. Section 68
deals with sue for mortgage money in transfer of property act.·
Power of Sale when valid: – Section 69 of the transfer of property act, 1882
states that, the mortgagee has the power to sell the mortgaged property
without the intervention of the court, on default of payment of mortgage
money by the mortgagor in following three cases:
Section 73, Transfer of Property Act state that where the mortgaged property
or any interest therein is sold owing to failure to pay arrears of revenue or
other charges of a public nature or rent due in respect of such property, and
such failure did not arise from any default of the mortgagee, the mortgagee
shall be entitled to claim payment of the mortgage shall be entitled to claim
payment of the mortgage-money, in whole or in part.
He must keep clear, full accurate accounts of all sums received and spent
him as a mortgagee, and, at any time during the continuance of the
mortgage, give the mortgagor, as his request and cost, true copies of such
accounts and of the vouchers by which they are supported.
Legal aspects
Case Study
In the case of Stanley v. Wilde, it was held that any provision mentioned in
the mortgage-deed which has an effect of preventing or impeding the right to
redemption is void as a clog on redemption.
Conclusion
A mortgage deed comes up with many rights and liabilities for both the
parties involved i.e. mortgagor and mortgagee. These rights and liabilities
were being mentioned in the Transfer of Property Act 1882 which is quite
old. New amendments were also being made in the Amendment Act of 1929
which is not implemented in a proper way so there is way in which both the
mortgagor and mortgagee are having various ideas for deceiving each other.
So, the need of the hour is to amend the laws and make it more stringent so
that no party attempts to enter into a fraudulent transaction.
3. What is the difference between sale and exchange? What are the right and
liabilities of parties to the exchange?