Tag Archives: Property Law

Property and Real Estate Laws in India

RE

  1. Adverse Possession
  2. Advertisement Agreement
  3. Amalgamation Of Immovable Property
  4. Auction Of Property
  5. Bargadar [West Bengal]
  6. Benami Property
  7. Building And Construction Contract
  8. Cantonment & Military Property
  9. Capital Assets
  10. Capital Assets Transfer
  11. Capital Gain
  12. Company Amalgamation
  13. Cyber Law
  14. Devottar
  15. Easement
  16. Enemy Property
  17. Family Settlement
  18. Gift [ Muhamadan]
  19. Government Grant
  20. Government Land
  21. Government Patta
  22. Heritage Property
  23. Highways
  24. Hotel Accommodation
  25. Hypothecation & Mortgage
  26. Insolvency
  27. Intellectual Property
  28. Land Acquisition
  29. Land Acquisition
  30. Licences
  31. Market Value Of Property
  32. Mesne Profit
  33. Mining And Minerals
  34. Partition Of Property
  35. Pre- Emption
  36. Property & Real Estate
  37. Property Agreement
  38. Property Disputes & Specific Reliefs
  39. Property Insurance
  40. Property Of Minor & Lunatic
  41. Property Related Offences
  42. Property Taxation
  43. Protection Of Property Of Deceased
  44. Refuge Land
  45. Registration Of Property
  46. Rent Control
  47. Revenue Record & Mutation
  48. Rights Over Land Property
  49. Securitization Of Property
  50. Slum Areas
  51. Status Of Raiat/ Bhumidar/ Jamindar
  52. Succession Of Property
  53. Temple Management
  54. Transfer of Motor Vehicles
  55. Transfer Of Property
  56. Transfer Pricing
  57. Trust Property
  58. Vesting Of Property
  59. Wakf [ Muhamadan]
  60. Will
HIGH COURT RULES

Appendix I : Calcutta Original Side Rules
Appendix II : Madras Original Side Rules
Appendix III : Bombay High Court Original Side Rules
Appendix IV : Delhi High Court Rules and Orders

CONNECTED LAWS

1.    The Indian Easements Act, 1882
2.    The Specific Relief Act, 1963
3.    The Code of Civil Procedure, 1908
4.    The Limitation Act, 1963
5.    The Code of Criminal Procedure, 1973
6.    The Transfer of Property Act, 1882

Title to Desert Land by Occupancy, Possession, and Prescription

De Jure Belli ac Pacis,”

Hugo Grotius

CHAPTER IV.

Title to Desert Land by Occupancy, Possession, and Prescription.

I. A great difficulty arises here respecting the right to property by uninterrupted possession for any certain time. For though time is the great agent, by whose motion all legal concerns and rights may be measured and determined, yet it has no effectual power of itself to create an express title to any property. Now those rights were introduced by the civil law; and it is not their long continuance, but the express provisions of the municipal law, which gives them their validity. They are of no force therefore, in the opinion of Vasquez, between two independent nations or sovereigns, or between a free nation and a sovereign: between a sovereign and an individual who is not his subject, or between two subjects belonging to different kings or nations. Which indeed seems true; and is actually the case; for such points relating to persons and things, are not left to the law of nature, but are settled by the respective laws of each country. As the unqualified admission of this principle would lead to great inconvenience, and prevent the disputes of kings and nations respecting the bounds of territory from ever being adjusted; in order to eradicate the seeds of perpetual warfare and confusion, so repugnant to the interests and feelings of every people; the settlement of such boundaries is not left to the claims of prescriptive right; but the territories of each contending party are, in general, expressly defined by certain treaties.

II. To disturb any one in the actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the King of the Ammonites demanded the lands situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah opposed his pretentious by proving his own possession of the same for three hundred years, and asked why he and his ancestors had for so long a period neglected to make their claim. And the Lacedaemonians, we are informed by Isocrates, laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena.
Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, “that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers, he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretensions, empty talking, and the latter treats them as idle tales and fables. With these opinions Cicero, in his 2nd book of Offices, agrees, asking “what justice there can be in depriving an owner of the land, which he has for many ages quietly possessed?”

III. Can it be said, in order to justify the disturbance of long enjoyed possessions, that the rightful owner INTENDED to assert his claim, when he never manifested such intention by any outward visible act? The effect of right which depends upon a man’s intentions can never follow from a bare conjecture of his will, unless he has declared and proved it by some express and visible act. For actions being the only evidence of intentions, intentions can never of themselves alone without such acts be the object of human laws. No conjectures indeed respecting the acts of the mind can be reduced to mathematical certainty, but only to the evidence of probability at the utmost. For men by their words may express intentions different from their real ones, and by their acts counterfeit intentions which they have not. The nature of human society, however, requires that all acts of the mind, when sufficiently indicated, should be followed by their due effects. Therefore the intention, which has been sufficiently indicated, is taken for granted against him who gave such indication.

IV. But to proceed to proofs derived from actions. A thing is understood to be abandoned, when it is cast away; except it be under particular circumstances, as throwing goods overboard in a storm to lighten a ship, where the owner is not supposed to have abandoned all intention of recovery, should it ever be in his power. Again, by giving up or cancelling a promissory note, a debt is deemed to be discharged. Paulus the Lawyer, says, a right to property may be renounced not only by words, but also by actions, or any other indication of the will. Thus, if an owner knowingly make a contract with any one who is in possession, treating him as if he were the rightful proprietor, he is naturally supposed to have relinquished his own pretensions. Nor is there any reason, why the same rule may not take place between sovereign princes, and independent states, as between individuals. In the same manner, a Lord by granting certain privileges to his Vassal, which he could not legally enjoy without a release from his former obligations, was supposed by such act to have given him his freedom. A power derived not from the civil law only, but from the law of nature, which allows every man to relinquish what is his own, and from a natural presumption that a person designed to do the act which he has given manifest proofs of his intention to do. In this sense, Ulpian may be rightly understood, where he says, that ACCEPTILATION or the verbal discharge of a debt is founded upon the law of nations.

V. Even omissions, taking all proper circumstances into consideration, come under the cognizance of the law. Thus the person, who knowing of an act, and being present at the commission of it, passes it over in silence, seems to give his consent to it; this was admitted by the Mosaic Law. Unless indeed it can be shewn that the same person was hindered from speaking either by fear or some other pressing circumstance. Thus a thing is accounted as lost when all hope of recovering it is given up; as for instance, if a tame animal, which was in our possession, be seized and carried off by a wild beast. Goods too lost by shipwreck, Ulpian says, cease to be considered as our own, not immediately, but when they are lost beyond all possibility of being reclaimed, and when no proofs of the owner’s intention to reclaim them can be discovered.
Now the case is altered, if persons were sent to inquire after the lost goods, or property, and a reward was promised to the finder. But if a person knows his property to be in the possession of another, and allows it to remain so for a length of time, without asserting his claim, unless there appear sufficient reasons for his silence, he is construed to have entirely abandoned all pretensions to the same. And to the same purpose he has said elsewhere, that a house is looked upon to be abandoned on account of the long silence of the proprietor.
The Emperor Antoninus Pius, in one of his rescripts, said there was but little justice in claiming interest upon money after a long period; for the length of time elapsed was an indication that the debtor had been excused from payment, from some motive of kindness.
There appears something similar to this in the nature of custom. For apart from the authority of civil laws, which regulate the time and manner of custom, and its introduction, it may arise from the indulgence of a sovereign to a conquered people. But the length of time from which custom derives the force of right, is not defined, but left to the arbitrary decision of what is sufficient to indicate general consent. But for silence to be taken as a valid presumption that property is deserted, two things are requisite: it must be a silence with a knowledge of the fact, and with a perfect freedom of will in the person concerned. For a silence founded in ignorance can have no weight; and where any other reason appears, the presumption of free consent must fail.

VI. Although the two requisites already named may be produced, yet other reasons have their weight; among which length of time is not the least important. For in the first place, it can scarcely happen, that for a great length of time a thing belonging to any one should not some way or other come to his knowledge, as time might supply many opportunities. Even if the civil law did not interpose to bar remote pretensions, the very nature of things would shew the reasonableness of a shorter period of limitation being allowed to present than to absent claimants. If impressions of fear were pleaded by any one in excuse, yet their influence would not be of perpetual duration, and length of time would unfold various means of security against such fears, either from resources within himself, or from the assistance of others. Escaping beyond the reach of him he dreaded, he might protest against his oppression, by appealing to proper judges and arbitrators.

VII. Now as time immemorial, considered in a moral light, seems to have no bounds, silence for such a length of time appears sufficient to establish the presumption that all claim to a thing is abandoned, unless the strongest proofs to the contrary can be produced. The most able Lawyers have properly observed, that time according to the memory of man is not an hundred years, though probably it may not fall far short of that space. For a hundred years are the term beyond which human existence seldom reaches; a space, which in general completes three ages or generations of men. The Romans made this objection to Antiochus, that he claimed cities, which neither he himself, his father, nor his grandfather had ever possessed.

VIII. From the natural affection which all men have for themselves, and their property, an objection may be taken against the presumption of any one’s abandoning a thing which belongs to him, and consequently negative acts, even though confirmed by a long period of time, are not sufficient to establish the above named conjecture.
Now considering the great importance deservedly attached to the settlement of CROWNS, all conjectures favourable to the possessors ought to be allowed. For if Aratus of Sicyon thought it a hard case, that PRIVATE possessions of fifty years’ standing should be disturbed, how much weightier is that maxim of Augustus, that it is the character of a good man and a good subject to wish for no change in the present government, and, in the words, which Thucydides has assigned to Alcibiades, to support the constitution, under which he has been born? But if no such rules in favour of possession could be adduced, yet a more weighty objection might be found against the presumption, drawn from the inclination of every one to preserve his own right, which is the improbability of one man’s allowing another to usurp his property for any length of time, without declaring and asserting his own right.

IX. Perhaps it may reasonably be said, that this matter does not rest upon presumption only, but that it is a rule, introduced by the voluntary law of Nations, that uninterrupted possession, against which no claim has been asserted, will entirely transfer such property to the actual possessor. For it is most likely that all nations by consent gave their sanction to such a practice, as conducive to their common peace. The term uninterrupted possession therefore has been very properly used to signify, as Sulpitius says in Livy, “that which has been held by one uniform tenour of right, without intermission.” Or as the same author, in another place, calls it, “perpetual possession, that has never been called in question.” For a transitory possession creates no title. And it was this exception which the Numidians had urged against the Carthaginians, alleging that as opportunity offered, sometimes the Kings of the Numidians had appropriated to themselves the disputed possessions, which had always remained in the hands of the stronger party.

X. But here another question, and that of considerable difficulty, arises, which is, to decide, whether, by this desertion, persons yet unborn may be deprived of their rights. If we maintain that they MAY NOT, the rule already established would be of no avail towards settling the tranquillity of kingdoms, and security of property. For in most things some thing is due to the interests of posterity. But if we affirm that they MAY, it then seems wonderful that silence should prejudice the rights of those, who were unable to speak, before they had any existence, and that the act of OTHERS should operate to their injury. To clear up this point, we must observe that no rights can belong to a person before he has any existence, as, in the language of the schools, there can be no accident without a substance. Wherefore if a Prince, from urgent motives of policy, and for the advantage of his own native dominions, and subjects, should decline to accept an additional sovereignty, or for the same reasons, should relinquish that, which he had already accepted, he would not be charged with injuring his heirs and successors, then unborn, who could have no rights before they had a natural existence.

Now as a sovereign may EXPRESSLY declare a change of his will respecting such dominions, so that change may, in certain cases, be implied without such declaration.
In consequence of such a change either expressed or implied, before the rights of heirs and successors can be supposed to have any existence, the possession may be considered as entirely abandoned. The case here has been considered according to the LAW OF NATURE: for the civil law, among other fictions, introduced that of the law’s personating those, who are not yet in being, and so preventing any occupancy from taking place to their prejudice; a regulation of law established upon no slight grounds in order to preserve estates in families, although every means of PERPETUATING property to individuals, which prevents its transfer from hand to hand, may in some measure be detrimental to the public interest. From whence it is a received opinion, that length of time will give a property in those fees, which were originally conveyed, not by right of succession, but by virtue of primitive investiture. Covarruvias, a lawyer of great judgment, supports this opinion with the strongest arguments in favour of primogeniture, and applies it to estates left in trust. For nothing can prevent the civil law from instituting a right, which, though it cannot be lawfully alienated by the act of one party without consent of the other, yet, to avoid uncertainty in the tenure of present proprietors, may be lost by neglect of claim for a length of time. Still the parties thus deprived may maintain a personal action against those, or their heirs, through whose neglect their right has been forfeited.

XI. It is an inquiry of importance whether the law of usucaption and prescription, if it prevail in a prince’s dominions, can be applied to the tenure of the crown, and all its prerogatives. Many legal writers, who have treated of the nature of sovereign power according to the principles of the Roman civil law, seem to affirm that it may be so applied. But this is an opinion to which we cannot accede in its full extent. For to make a law binding upon any one, it is requisite that the legislator should possess both power and will. A legislator is not bound by his law, as by the irrevocable and unchangeable controul of a superior. But occasions may arise that will demand an alteration or even a repeal of the law which he has made. Yet a legislator may be bound by his own law, not directly as a legislator, but as an individual forming part of the community: and that too according to natural equity, which requires that all the component parts should bear a reference to the whole. We find in holy writ, this rule observed by Saul in the beginning of his reign.

Now that rule does not take place here. For we are considering the lawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the whole community. Nor indeed can any such intention in the lawgiver be presumed to have existed. For legislators are not supposed to comprehend themselves within the rule of the law, except where the nature and subject of it are general. But sovereignty is not to be compared with other things; it so far surpasses them in the nobleness of its end, and the dignity of its nature. Nor is any civil law to be found which either does, or designs to comprehend sovereign power within the rules of prescription.

De Jure Belli ac Pacis,”

Law of Property Act 1925[UK]

UK LEGISLATION

Ireland Advocatetanmoy

INDEX

Introductory Text

Part I General Principles as to Legal Estates, 
Equitable Interests and Powers

1. Legal estates and equitable interests.
2. Conveyances overreaching certain equitable interests and powers.
3. Manner of giving effect to equitable interests and powers.
4. Creation and disposition of equitable interests.
5. Satisfied terms, whether created out of freehold or leasehold land to cease.
6. Saving of lessors’ and lessees’ covenants.
7. Saving of certain legal estates and statutory powers.
8. Saving of certain legal powers to lease.
9. Vesting orders and dispositions of legal estates operating as conveyances by an estate owner.
10. Title to be shown to legal estates.
11. Registration in Middlesex and Yorkshire as respects legal estates.
12. Limitation and Prescription Acts.
13. Effect of possession of documents.
14. Interests of persons in possession.
15. Presumption that parties are of full age.

Death Duties

16–18.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Infants and Lunatics

19. Effect of conveyances of legal estates to infants.
20. Infants not to be appointed trustees.
21. Receipts by married infants.
22. Conveyances on behalf of persons suffering from mental disorder and as to land held by them in trust.
Dispositions on Trust for Sale
23. Duration of trusts for sale.

Trusts of land

24. Appointment of trustees of land.
25. Power to postpone sale.
26. Consents to the execution of a trust for sale.
27. Purchaser not to be concerned with the trusts of the proceeds of sale which are to be paid to two or more trustees or to a trust corporation.
28. Powers of management, &c. conferred on trustees for sale.
29. Delegation of powers of management by trustees for sale.
30. Powers of court where trustees for sale refuse to exercise powers.
31. Trust of mortgaged property where right of redemption is barred.
32. Implied trust for sale in personalty settlements.
33. Application of Pt. I. to personal representatives.

Undivided Shares and Joint Ownership

34. Effect of future dispositions to tenants in common.
35. Meaning of the statutory trusts.
36. Joint tenancies.
37. Rights of husband and wife.
38. Party structures.
Transitional Provisions
39. Transitional provisions in First Schedule.

Part II Contracts, Conveyances and other Instruments

Contracts

40.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41. Stipulations not of the essence of a contract.
42. Provisions as to contracts.
43. Rights protected by registration.
44. Statutory commencements of title.
45. Other statutory conditions of sale.
46. Forms of contracts and conditions of sale.
47. Application of insurance money on completion of a sale or exchange.
48. Stipulations preventing a purchaser, lessee, or underlessee from employing his own solicitor to be void.
49. Applications to the court by vendor and purchaser.
50. Discharge of incumbrances by the court on sales or exchanges.

Conveyances and other Instruments

51. Lands lie in grant only.
52. Conveyances to be by deed.
53. Instruments required to be in writing.
54. Creation of interests in land by parol.
55. Savings in regard to last two sections.
56. Persons taking who are not parties and as to indentures.
57. Description of deeds.
58. Provisions as to supplemental instruments.
59. Conditions and certain covenants not implied.
60. Abolition of technicalities in regard to conveyances and deeds.
61. Construction of expressions used in deeds and other instruments.
62. General words implied in conveyances.
63. All estate clause implied.
64. Production and safe custody of documents.
65. Reservation of legal estates.
66. Confirmation of past transactions.
67. Receipt in deed sufficient.
68. Receipt in deed or indorsed evidence.
69. Receipt in deed or indorsed authority for payment to solicitor.
70. Partial release of security from rentcharge.
71. Release of part of land affected from a judgment.
72. Conveyances by a person to himself, &c.
73.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
74. Execution of instruments by or on behalf of corporations.
74A.Execution of instrument as a deed
75. Rights of purchaser as to execution.

Covenants

76. Covenants for title.
77. Implied covenants in conveyances subject to rents.
78. Benefit of covenants relating to land.
79. Burden of covenants relating to land.
80. Covenants binding land.
81. Effect of covenant with two or more jointly.
82. Covenants and agreements entered into by a person with himself and another or others.
83. Construction of implied covenants.
84. Power to discharge or modify restrictive covenants affecting land.

Part III Mortgages, Rentcharges, and Powers of Attorney

Mortgages

85. Mode of mortgaging freeholds.
86. Mode of mortgaging leaseholds.
87. Charges by way of legal mortgage.
88. Realisation of freehold mortgages.
89. Realisation of leasehold mortgages.
90. Realisation of equitable charges by the court.
91. Sale of mortgaged property in action for redemption or foreclosure.
92. Power to authorise land and minerals to be dealt with separately.
93. Restriction on consolidation of mortgages.
94. Tacking and further advances.
95. Obligation to transfer instead of re-conveying, and as to right to take possession.
96. Regulations respecting inspection, production and delivery of documents, and priorities.
97. Priorities as between puisne mortgages.
98. Actions for possession by mortgagors.
99. Leasing powers of mortgagor and mortgagee in possession.
100. Powers of mortgagor and mortgagee in possession to accept surrenders of leases.
101. Powers incident to estate or interest of mortgagee.
102. Provision as to mortgages of undivided shares in land.
103. Regulation of exercise of power of sale.
104. Conveyance on sale.
105. Application of proceeds of sale.
106. Provisions as to exercise of power of sale.
107. Mortgagee’s receipts, discharges, &c.
108. Amount and application of insurance money.
109. Appointment, powers, remuneration and duties of receiver.
110. Effect of bankruptcy of the mortgagor on the power to sell or appoint a receiver.
111. Effect of advance on joint account.
112. Notice of trusts on transfer of mortgage.
113. Notice of trusts affecting mortgage debts.
114. Transfers of mortgages.
115. Reconveyances of mortgages by endorsed receipts.
116. Cesser of mortgage terms.
117. Forms of statutory legal charges.
118. Forms of statutory transfers of legal charges.
119. Implied covenants, joint and several.
120. Form of discharge of statutory mortgage or charge.

Rentcharges

121. Remedies for the recovery of annual sums charged on land.
122. Creation of rentcharges charged on another rentcharge and remedies for recovery thereof.

Powers of Attorney

123.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
124.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
125. Powers of attorney relating to land to be filed.
126–129.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part IV Equitable Interests and things in Action

130. Creation of entailed interests in real and personal property.
131. Abolition of the rule in Shelley’s case.
132. As to heirs taking by purchase.
133.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
134. Restriction on executory limitations.
135. Equitable waste.
136. Legal assignments of things in action.
137. Dealings with life interests, reversions and other equitable interests.
138. Power to nominate a trust corporation to receive notices.
Part V Leases and Tenancies
139. Effect of extinguishment of reversion.
140. Apportionment of conditions on severance.
141. Rent and benefit of lessee’s covenants to run with the reversion.
142. Obligation of lessor’s covenants to run with reversion.
143. Effect of licences granted to lessees.
144. No fine to be exacted for licence to assign.
145. Lessee to give notice of ejectment to lessor.
146. Restrictions on and relief against forfeiture of leases and underleases.
147. Relief against notice to effect decorative repairs.
148. Waiver of a covenant in a lease.
149. Abolition of interesse termini, and as to reversionary leases and leases for lives.
150. Surrender of a lease, without prejudice to underleases with a view to the grant of a new lease.
151. Provision as to attornments by tenants.
152. Leases invalidated by reason of non-compliance with terms of powers under which they are granted.
153. Enlargement of residue of long terms into fee simple estates.
154. Application of Part V. to existing leases.

Part VI Powers

155. Release of powers simply collateral.
156. Disclaimer of power.
157. Protection of purchasers claiming under certain void appointments.
158. Validation of appointments where objects are excluded or take illusory shares.
159. Execution of powers not testamentary.
160. Application of Part VI. to existing powers.
Part VII Perpetuities and Accumulations
Perpetuities
161. Abolition of the double possibility rule.
162. Restrictions on the perpetuity rule.
163.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accumulations

164. General restrictions on accumulation of income.
165. Qualification of restrictions on accumulation.
166. Restriction on accumulation for the purchase of land.
Part VIII Married Women and Lunatics
167–170.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
171.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part IX Voidable Dispositions

172.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
173. Voluntary disposition of land how far voidable as against purchasers.
174. Acquisitions of reversions at an under value.
Part X Wills
175. Contingent and future testamentary gifts to carry the intermediate income.
176. Power for tenant in tail in possession to dispose of property by specific devise or bequest.
177.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
178.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
179. Prescribed forms for reference in wills.

Part XI Miscellaneous

Miscellaneous

180. Provisions as to corporations.
181. Dissolution of a corporation.
182. Protection of solicitor and trustees adopting Act.
183. Fraudulent concealment of documents and falsification of pedigrees.
184. Presumption of survivorship in regard to claims to property.
185. Merger.
186. Rights of pre-emption capable of release.
187. Legal easements.
188. Power to direct division of chattels.
189. Indemnities against rents.

Redemption and Apportionment of Rents, &c.

190. Equitable apportionment of rents and remedies for non-payment or breach of covenant.
191.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
192. Apportionment of charges payable for redemption of tithe rentcharge.

Commons and Waste Lands

193. Rights of the public over commons and waste lands.
194. Restrictions on inclosure of commons.

Judgments, &c. affecting Land

195.Equitable charges in right of judgment debt, &c.

Notices

196. Regulations respecting notices.
197. Notice of memorials registered in Middlesex and Yorkshire.
198. Registration under the Land Charges Act, 1925, to be notice.
199. Restrictions on constructive notice.
200. Notice of restrictive covenants and easements.

Part XII Construction, Jurisdiction, and General Provisions

201. Provisions of Act to apply to incorporeal hereditaments.
202. Provisions as to enfranchisement of copyholds, &c.
203. Payment into court, jurisdiction and procedure.
204. Orders of court conclusive.
205. General definitions.
206. Forms of instruments and examples of abstracts.
207. Repeals as respects England and Wales.
208. Application to the Crown.
209.Short title, commencement, and extent.

SCHEDULES

FIRST SCHEDULE Transitional Provisions
SECOND SCHEDULE Implied Covenants
THIRD SCHEDULE Forms of Transfer and Discharge of Mortgages
FOURTH SCHEDULE Forms relating to Statutory Charges or Mortgages of Freehold or Leasehold Land
FIFTH SCHEDULE Forms of Instruments
SIXTH SCHEDULE Epitomes of Abstracts of Title
SEVENTH SCHEDULE


General definitions.

(1)In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:—

(i)Bankruptcy” includes liquidation by arrangement; also in relation to a corporation means the winding up thereof;

(ii)Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; “convey” has a corresponding meaning; and “disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning;

(iii)Building purposes” include the erecting and improving of, and the adding to, and the repairing of buildings; and a “building lease” is a lease for building purposes or purposes connected therewith;

(iiiA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv)Death duty” means estate duty . . . and every other duty leviable or payable on a death;

(v)Estate owner” means the owner of a legal estate, but an infant is not capable of being an estate owner;

(vi)Gazette” means the London Gazette;

(vii)Incumbrance” includes a legal or equitable mortgage and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and “incumbrancer” has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;

(viii)Instrument” does not include a statute, unless the statute creates a settlement;

(ix)Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; . . and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same . . .; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;

(x)Legal estates” mean the estates, interests and charges, in or over land (subsisting or created at law) which are by this Act authorised to subsist or to be created as legal estates; “equitable interests” mean all the other interests and charges in or over land  . .; an equitable interest “capable of subsisting as a legal estate” means such as could validly subsist or be created as a legal estate under this Act;

(xi)Legal powers” include the powers vested in a chargee by way of legal mortgage or in an estate owner under which a legal estate can be transferred or created; and “equitable powers” mean all the powers in or over land under which equitable interests or powers only can be transferred or created;

(xii)Limitation Acts” mean the Real Property Limitation Acts, 1833, 1837 and 1874, and “limitation” includes a trust;

(xiii)Mental disorder ” has the meaning assigned to it by section 1 of the Mental Health Act 1983 ] , and “ receiver ”, in relation to a person suffering from mental disorder, means a receiver appointed for that person under art VIII of the Mental Health Act 1959 or Part VII of the said Act of 1983 ] of that Act; ]

(xiv)A “mining lease” means a lease for mining purposes, that is, the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected therewith, and includes a grant or licence for mining purposes;

(xv)Minister” means the “Minister of Agriculture and Fisheries”;

(xvi)Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

(xvii)Notice” includes constructive notice;

(xviii)Personal representative” means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the court;

(xix)Possession” includes receipt of rents and profits or the right to receive the same, if any; and “income” includes rents and profits;

(xx)Property” includes any thing in action, and any interest in real or personal property;

(xxi)Purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property except that in Part I of this Act and elsewhere where so expressly provided “purchaser” only means a person who acquires an interest in or charge on property for money or money’s worth; and in reference to a legal estate includes a chargee by way of legal mortgage; and where the context so requires “purchaser” includes an intending purchaser; “purchase” has a meaning corresponding with that of “purchaser”; and “valuable consideration” includes marriage and formation of a civil partnership,] but does not include a nominal consideration in money;

(xxii)Registered land” has the same meaning as in the Land Registration Act 2002; . .

(xxiii)Rent” includes a rent service or a rentcharge, or other rent, toll, duty, royalty, or annual or periodical payment in money or money’s worth, reserved or issuing out of or charged upon land, but does not include mortgage interest; “rentcharge” includes a fee farm rent; “fine” includes a premium or foregift and any payment, consideration, or benefit in the nature of a fine, premium or foregift; “lessor” includes an underlessor and a person deriving title under a lessor or underlessor; and “lessee” includes an underlessee and a person deriving title under a lessee or underlessee, and “lease” includes an underlease or other tenancy;

(xxiv)Sale” includes an extinguishment of manorial incidents, but in other respects means a sale properly so called;

(xxv)Securities” include stocks, funds and shares;

(xxvi)Tenant for life,” “statutory owner,” “settled land,” “settlement,” “vesting deed,” “subsidiary vesting deed,” “vesting order,” “vesting instrument,” “trust instrument,” “capital money,” and “trustees of the settlement” have the same meanings as in the Settled Land Act, 1925;

(xxvii)Term of years absolute” means a term of years (taking effect either in possession or in reversion whether or not at a rent) with or without impeachment for waste, subject or not to another legal estate, and either certain or liable to determination by notice, re-entry, operation of law, or by a provision for cesser on redemption, or in any other event (other than the dropping of a life, or the determination of a determinable life interest); but does not include any term of years determinable with life or lives or with the cesser of a determinable life interest, nor, if created after the commencement of this Act, a term of years which is not expressed to take effect in possession within twenty-one years after the creation thereof where required by this Act to take effect within that period; and in this definition the expression “term of years” includes a term for less than a year, or for a year or years and a fraction of a year or from year to year;

(xxviii)Trust Corporation” means the Public Trustee or a corporation either appointed by the court in any particular case to be a trustee or entitled by rules made under subsection (3) of section four of the Public Trustee Act, 1906, to act as custodian trustee;

(xxix)Trust for sale,” in relation to land, means an immediate . . . trust for sale, whether or not exercisable at the request or with the consent of any person . .; “trustees for sale” mean the persons (including a personal representative) holding land on trust for sale;  . .

(xxx)United Kingdom” means Great Britain and Northern Ireland;

(xxxi)Will” includes codicil.

The West Bengal Housing Industry Regulation Bill 2017

bengalmap

RERA  vs HIRA

The West Bengal Housing Industry Regulation Bill 2017 was passed by the state assembly, on August 16, 2017, although it missed the July 31 deadline by the centre, for adoption of the Real Estate (Regulation and Development) Act (RERA) 2016, in all states.The bill aims to offer consumers protection from building and housing promoters. Once notified by the West Bengal government, all housing projects above 500 sq metres or eight apartments, need to be registered with the state regulator, the Housing Industry Regulatory Authority (HIRA). The bill proposes to bring the HIRA in place, over the next 60 days. The real estate industry body CREDAI Bengal said  as reported that The Real Estate Act came into force on May 1, 2017 and the state government is to notify the rules.


Related Acts:

  1.  West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.[ To be replaced by West Bengal Housing Industry Regulation Act, 2017]
  2. Consumer Protection Act, 1986
  3. Competition Act, 2002
  4. The Real Estate (Regulation and Development) Act, 2016 (“RERA”)

STATE LAW VS CENTRAL LAW

IF a central  Act  is considered to be a complete code with respect to regulation and development of real estate in India, West Bengal  Act  would be repugnant due to mere existence of RERA.
  1. Hoechst Pharmaceuticals v. State of Bihar, 1983 (4) SCC 45
  2. Offshore Holdings Private Limited v. Bangalore Development Authority, C.A. No. 711 of 2011, decided on January 18, 2011 (Supreme Court)
  3.  M/s Innoventive Industries Limited v. ICICI Bank[SC-decided on August 31, 2017]

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was held to be a complete code in the case of Pegasus Assets Reconstruction Private Limited v. Haryana Concast Limited, C.A. No. 3646 of 2011, decided on December 29, 2015 (Supreme Court);

The Banking Regulation Act, 1949 was held to be a complete code in the case of ICICI Bank Limited v. Official Liquidator of APS Star Industries, AIR 2011 SC 1521;

The Foreigners Act, 1946 was held to be exhaustive in Martinez Montsant Joan v. Union of India, 2009 (5) ALT 120.

M/s Innoventive Industries Limited v. ICICI Bank, (C.A. No. 8337 of 2009, decided on August 31, 2017) (Supreme Court);

Deep Chand v. State of U.P., AIR 1959 SC 648; Ch. Tika Ramji v. The State of Uttar Pradesh, (1956) SCR 393.

Animal Welfare Board of India v. A. Nagaraja, C.A. No. 5387 of 2014, decided on May 7, 2014 (Supreme Court).

State of Orissa v. M. A. Tulloch & Co., (1964) 4 SCR 461.