Right
to proceeds of revenue sale or compensation on acquisition
73.
(1) Where the mortgaged property or any part thereof 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-money, in whole or in part, out of any surplus of the
sale proceeds remaining after payment of the arrears and of all charges and
deductions directed by law.
(2)
Where the mortgaged property or any part thereof or any interest therein is
acquired under the Land Acquisition Act, 1894, or any other enactment for the
time being in force providing for the compulsory acquisition of immoveable
property, the mortgagee shall be entitled to claim payment of the
mortgage-money, in whole or in part, out of the amount due to the mortgagor as
compensation.
(3)
Such claims shall prevail against all other claims except those of prior
encumbrancers, and may be enforced notwithstanding that the principal money on
the mortgage has not become due.]
[Repealed]
74. [Repealed by section 39 of
the Transfer of Property (Amendment) Act, 1929 (Act No. XX of 1929).]
[Repealed]
75. [Repealed by section 39 of the Transfer of Property (Amendment) Act,
1929 (Act No. XX of 1929).]
Liabilities of mortgagee in possession
76.
When, during the continuance of the mortgage, the mortgagee takes possession of
the mortgaged property,-
(a)
he must manage the property as a person of ordinary prudence would manage it if
it were his own;
(b)
he must use his best endeavours to collect the rents and profits thereof;
(c)
he must, in the absence of a contract to the contrary, out of the income of the
property, pay the Government revenue, all other charges of a public nature and
all rent accruing due in respect thereof during such possession, and any
arrears of rent in default of payment of which the property may be summarily
sold;
(d)
he must, in the absence of a contract to the contrary, make such necessary
repairs of the property as he can pay for out of the rents and profits thereof
after deducting from such rents and profits the payments mentioned in clause
(c) and the interest on the principal money;
(e)
he must not commit any act which is destructive or permanently injurious to the
property;
(f)
where he has insured the whole or any part of the property against loss or
damage by fire, he must, in case of such loss or damage, apply any money which
he actually receives under the policy or so much thereof as may be necessary,
in reinstating the property, or, if the mortgagor so directs, in reduction or
discharge of the mortgage-money;
(g)
he must keep clear, full and accurate accounts of all sums received and spent
by him as mortgagee, and, at any time during the continuance of the mortgage, give
the mortgagor, at his request and cost, true copies of such accounts and of the
vouchers by which they are supported;
(h)
his receipts from the mortgaged property, or, where such property is personally
occupied by him, a fair occupation-rent in respect thereof, shall, after
deducting the expenses properly incurred for the management of the property and
the collection of rents and profits and the other expenses mentioned in clauses
(c) and (d), and interest thereon, be debited against him in reduction of the
amount (if any) from time to time due to him on account of interest and, so far
as such receipts exceed any interest due, in reduction or discharge of the
mortgage-money; the surplus, if any, shall be paid to the mortgagor;
(i)
when the mortgagor tenders, or deposits in manner hereinafter provided, the
amount for the time being due on the mortgage, the mortgagee must,
notwithstanding the provisions in the other clauses of this section, account
for his receipts from the mortgaged property from the date of the tender or
from the earliest time when he could take such amount out of Court, as the case
may be and shall not be entitled to deduct any amount therefrom on account of
any expenses incurred after such date or time in connection with the mortgaged
property.
Loss occasioned by his default If the mortgagee fail to perform any of the
duties imposed upon him by this section, he may, when accounts are taken in
pursuance of a decree made under this Chapter, be debited with the loss, if any,
occasioned by such failure
Receipts in lieu of interest
77.
Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where
there is a contract between the mortgagee and the mortgagor that the receipts
from the mortgaged property shall, so long as the mortgagee is in possession of
the property, be taken in lieu of interest on the principal money, or in lieu
of such interest and defined portions of the principal.
Priority
Postponement of prior mortgagee
78.
Where, through the fraud, misrepresentation or gross neglect of a prior
mortgagee, another person has been induced to advance money on the security of
the mortgaged property, the prior mortgagee shall be postponed to the
subsequent mortgagee.
Mortgage to secure uncertain amount when
maximum is expressed
79.
If a mortgage made to secure future advances, the performance of an engagement
or the balance of a running account, expresses the maximum to be secured
thereby, a subsequent mortgage of the same property shall, if made with notice
of the prior mortgage, be postponed to the prior mortgage in respect of all
advances or debits not exceeding the maximum, though made or allowed with
notice of the subsequent mortgage.
Illustration
A
mortgages Sultanpur to his bankers, B & Co., to secure the balance of his
account with them to the extent of Tk. 10,000. A then mortgages Sultanpur to C,
to secure Tk. 10,000, C having notice of the mortgage to B & Co., and C
gives notice to B & Co. of the second mortgage. At the date of the second
mortgage, the balance due to B & Co. does not exceed Tk. 5,000. B &
Co., subsequently advance to A sums making the balance of the account against
him exceed the sum of Tk. 10,000. B & Co., are entitled, to the extent of
Tk. 10,000, to priority over C.
[Repealed]
80. [Repealed by section 41 of the Transfer of Property (Amendment) Act,
1929 (Act No. XX of 1929).]
Marshalling and Contribution
Marshalling securities
81.
If the owner of two or more properties mortgages them to one person and then
mortgages one or more of the properties to another person, the subsequent
mortgagee is, in the absence of a contract to the contrary, entitled to have
the prior mortgage-debt satisfied out of the property or properties not
mortgaged to him, so far as the same will extend, but not so as to prejudice
the rights of the prior mortgagee or of any other person who has for
consideration acquired an interest in any of the properties.
Contribution to mortgage-debt
82.
Where property subject to a mortgage belongs to two or more persons having
distinct and separate rights of ownership therein, the different shares in or
parts of such property owned by such persons are, in the absence of a contract
to the contrary, liable to contribute rateably to the debt secured by the
mortgage, and, for the purpose of determining the rate at which each such share
or part shall contribute, the value thereof shall be deemed to be its value at
the date of the mortgage after deduction of the amount of any other mortgage or
charge to which it may have been subject on that date.
Where,
of two properties belonging to the same owner, one is mortgaged to secure one
debt and then both are mortgaged to secure another debt, and the former debt is
paid out of the former property, each property is, in the absence of a contract
to the contrary, liable to contribute rateably to the latter debt after
deducting the amount of the former debt from the value of the property out of
which it has been paid.
Nothing
in this section applies to a property liable under section 81 to the claim of
the subsequent mortgagee.
Deposit in Court
Power to deposit in Court money due on
mortgage
83.
At any time after the principal money payable in respect of any mortgage has
become due and before a suit for redemption of the mortgaged property is
barred, the mortgagor,or any other person entitled to institute such suit, may
deposit, in any Court in which he might have instituted such suit, to the
account of the mortgage, the amount remaining due on the mortgage.
The
Court shall thereupon cause written notice of the deposit to be served on the
mortgagee, and the mortgagee may, on presenting a petition (verified in manner
prescribed by law for the verification of plaints) stating the amount then due
on the mortgage, and his willingness to accept the money so deposited in full
discharge of such amount, and on depositing in the same Court the mortgage-deed
and all documents in his possession or power relating to the mortgaged
property, apply for and receive the money, and the mortgage-deed and all such
other documents so deposited shall be delivered to the mortgagor or such other
person as aforesaid.
Where
the mortgagee is in possession of the mortgaged property, the Court shall,
before paying to him the amount so deposited, direct him to deliver possession
thereof to the mortgagor and at the cost of the mortgagor either to re-transfer
the mortgaged property to the mortgagor or to such third person as the
mortgagor may direct or to execute and (where the mortgage has been effected by
a registered instrument) have registered an acknowledgement in writing that any
right in derogation of the mortgagor's interest transferred to the mortgagee
has been extinguished.
Cessation of interest
84.
When mortgagor or such other person as aforesaid has tendered or deposited in
Court under section 83 the amount remaining due on the mortgage, interest on
the principal money shall cease from the date of the tender or in the case of a
deposit, where no previous tender of such amount has been made as soon as the
mortgagor or such other person as aforesaid has done all that has to be done by
him to enable the mortgagee to take such amount out of Court, and the notice
required by section 83 has been served on the mortgagee:
Provided
that, where the mortgagor has deposited such amount without having made a
previous tender thereof and has subsequently withdrawn the same or any part
thereof, interest on the principal money shall be payable from the date of such
withdrawal.
Nothing
in this section or in section 83 shall be deemed to deprive the mortgagee of
his right to interest when there exists a contract that he shall be entitled to
reasonable notice before payment or tender of the mortgage-money and such
notice has not been given before the making of the tender or deposit, as the
case may be.
[Repealed]
85. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
[Repealed]
86. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
[Repealed]
87. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
[Repealed]
88. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
[Repealed]
89. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
[Repealed]
90. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
Redemption
Person who may sue for redemption
91.
Besides the mortgagor, any of the following persons may redeem, or institute a
suit for redemption of, the mortgaged property, namely:-
(a)
any person (other than the mortgagee of the interest sought to be redeemed) who
has any interest in, or charge upon, the property mortgaged or in or upon the
right to redeem the same;
(b)
any surety for the payment of the mortgage-debt or any part thereof; or
(c)
any creditor of the mortgagor who has in a suit for the administration of his
estate obtained a decree for sale of the mortgaged property.
Subrogation
92.
Any of the persons referred to in section 91 (other than the mortgagor) and any
co-mortgagor shall, on redeeming property subject to the mortgage, have, so far
as regards redemption, foreclosure or sale of such property, the same rights as
the mortgagee whose mortgage he redeems may have against the mortgagor or any
other mortgagee.
The
right conferred by this section is called the right of subrogation, and a
person acquiring the same is said to be subrogated to the rights of the
mortgagee whose mortgage he redeems.
A
person who has advanced to a mortgagor money with which the mortgage has been
redeemed shall be subrogated to the rights of the mortgagee whose mortgage has
been redeemed, if the mortgagor has by a registered instrument agreed that such
persons shall be so subrogated.
Nothing
in this section shall be deemed to confer a right of subrogation on any person
unless the mortgage in respect of which the right is claimed has been redeemed
in full.
Prohibition of tacking
93.
No mortgagee paying off a prior mortgage, whether with or without notice of an
intermediate mortgage, shall thereby acquire any priority in respect of his
original security; and, except in the case provided for by section 79, no
mortgagee making a subsequent advance to the mortgagor, whether with or without
notice of an intermediate mortgage, shall thereby acquire any priority in
respect of his security for such subsequent advance.
Rights of mesne mortgagee
94.
Where a property is mortgaged for successive debts to successive mortgagees, a
mesne mortgage has the same rights against mortgagees posterior to himself as
he has against the mortgagor.
Right of redeeming co-mortgagor to
expenses
95.
Where one of several mortgagors redeems the mortgaged property, he shall, in
enforcing his right of subrogation under section 92 against his co-mortgagors,
be entitled to add to the mortgage-money recoverable from them such proportion
of the expenses properly incurred in such redemption as is attributable to
their share in the property.
Mortgage by deposit of title-deeds
96.
The provisions hereinbefore contained which apply to a simple mortgage shall,
so far as may be, apply to a mortgage by deposit of title-deeds.
[Repealed]
97. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
Anomalous Mortgages
Rights and liabilities of parties to
anomalous mortgages
98. In the case of an anomalous mortgage the
rights and liabilities of the parties shall be determined by their contract as
evidenced in the mortgage-deed, and, so far as such contract does not extend,
by local usage.
[Repealed]
99. [Repealed by section 156 and Schedule V of the Code of Civil
Procedure, 1908 (Act No. V of 1908).]
Charges
Charges
100.
Where immoveable property of one person is by act of parties or operation of
law made security for the payment of money to another, and the transaction does
not amount to a mortgage, the latter person is said to have a charge on the
property; and all the provisions hereinbefore contained which apply to a simple
mortgage shall, so far as may be, apply to such charge.
Nothing
in this section applies to the charge of a trustee on the trust-property for
expenses properly incurred in the execution of his trust, and, save as
otherwise expressly provided by any law for the time being in force, no charge
shall be enforced against any property in the hands of a person to whom such
property has been transferred for consideration and without notice of the
charge.
No merger in case of subsequent encumbrance 101. Any mortgagee of, or person having a
charge upon, immoveable property, or any transferee from such mortgagee or
charge-holder, may purchase or otherwise acquire the rights in the property of
the mortgagor or owner, as the case may be, without thereby causing the
mortgage or charge to be merged as between himself and any subsequent mortgagee
of, or person having a subsequent charge upon, the same property; and no such
subsequent mortgagee or charge-holder shall be entitle to foreclose or sell such
property without redeeming the prior mortgage or charge, or otherwise than
subject thereto.
Notice and Tender
Service or tender on or to agent
102.
Where the person on or to whom any notice or tender is to be served or made
under this Chapter does not reside in the district in which the mortgaged
property or some part thereof is situate, service or tender on or to an agent
holding a general power-of-attorney from such person or otherwise duly
authorised to accept such service or tender shall be deemed sufficient.
Where
no person or agent on whom such notice should be served can be found or is
known to the person required to serve the notice, the latter person may apply
to any Court in which a suit might be brought for redemption of the mortgaged
property, and such Court shall direct in what manner such notice shall be
served, and any notice served in compliance with such direction shall be deemed
sufficient:
Provided
that, in the case of a notice required by section 83, in the case of a deposit,
the application shall be made to the Court in which the deposit has been made.
Where
no person or agent to whom such tender should be made can be found or is known
to the person desiring to make the tender, the latter person may deposit in any
Court in which a suit might be brought for redemption of the mortgaged property
the amount sought to be tendered, and such deposit shall have the effect of a
tender of such amount.
Notice, etc, to or by person incompetent to
contract
103.
Where, under the provisions of this Chapter, a notice is to be served on or by,
or a tender or deposit made or accepted or taken out of Court by, any person
incompetent to contract, such notice may be served on or by, or tender or
deposit made, accepted or taken, by the legal curator of the property of such
person; but where there is no such curator, and it is requisite or desirable in
the interests of such person that a notice should be served or a tender or
deposit made under the provisions of this Chapter, application may be made to
any Court in which a suit might be brought for the redemption of the mortgage
to appoint
a
guardian ad litem for the purpose of serving or receiving service of such
notice, or making or accepting such tender, or making or taking out of Court
such deposit, and for the performance of all consequential acts which could or
ought to be done by such person if he were competent to contract; and the
provisions of Order XXXII in the First Schedule to the Code of Civil Procedure,
1908 shall, so far as may be, apply to such application and to the parties
thereto and to the guardian appointed thereunder.
Power to make rules
104.
The 30[ Supreme Court] may, from time to time, make rules consistent with this
Act for carrying out, in itself and in the Courts of Civil Judicature subject
to its superintendence, the provisions contained in this Chapter.
CHAPTER V
OF
LEASES OF IMMOVEABLE PROPERTY
“Lease” defined
105.
A lease of immoveable property is a transfer of a right to enjoy such property,
made for a certain time, express or implied, or in perpetuity, in consideration
of a price paid or promised, or of money, a share of crops, service or any
other thing of value, to be rendered periodically or on specified occasions to
the transferor by the transferee, who accepts the transfer on such terms.
"Lessor", "lessee",
"premium" and "rent" defined The transferor is called the lessor, the
transferee is called the lessee, the price is called the premium, and the
money, share, service or other thing to be so rendered is called the rent.
Duration of certain leases in absence of
written contract or local usage
106.
In the absence of a contract or local law or usage to the contrary, a lease of
immoveable property for agricultural or manufacturing purposes shall be deemed
to be a lease from year to year, terminable, on the part of either lessor or
lessee, by six months' notice expiring with the end of a year of the tenancy;
and a lease of immoveable property for any other purpose shall be deemed to be
a lease from month to month, terminable, on the part of either lessor or
lessee, by fifteen days' notice expiring with the end of a month of the
tenancy.
Every
notice under this section must be in writing signed by or on behalf of the
person giving it, and either be sent by post to the party who is intended to be
bound by it or be tendered or delivered personally to such party, or to one of
his family or servants at his residence, or (if such tender or delivery is not
practicable) affixed to a conspicuous part of the property.
Leases how made
107.
A lease of immoveable property from year to year, or for any term exceeding one
year, or reserving a yearly rent, can be made only by a registered instrument.
All
other leases of immoveable property may be made either by a registered
instrument or by oral agreement accompanied by delivery of possession.
Where
a lease of immoveable property is made by a registered instrument, such
instrument or, where there are more instruments than one, each such instrument
shall be executed by both the lessor and the lessee:
Provided
that the Government may, from time to time, by notification in the official
Gazette, direct that leases of immoveable property, other than leases from year
to year, or for any term exceeding one year, or reserving a yearly rent, or any
class of such leases, may be made by unregistered instrument or by oral
agreement without delivery of possession.
Rights and liabilities of lessor and
lessee
108. In the absence of a contract or local
usage to the contrary, the lessor and the lessee of immoveable property, as
against one another, respectively, possess the rights and are subject to the
liabilities mentioned in the rules next following, or such of them are
applicable to the property leased:-
(A)
Rights and Liabilities of the Lessor
(a)
The lessor is bound to disclose to the lessee any material defect in the
property, with reference to its intended use, of which the former is and the
latter is not aware, and which the latter could not with ordinary care
discover:
(b)
the lessor is bound on the lessee's request to put him in possession of the
property:
(c)
the lessor shall be deemed to contract with the lessee that, if the latter pays
the rent reserved by the lease and performs the contracts binding on the
lessee, he may hold the property during the time limited by the lease without
interruption.
The
benefit of such contract shall be annexed to and go with the lessee's interest
as such, and may be enforced by every person in whom that interest is for the
whole or any part thereof from time to time vested.
(B)
Rights and Liabilities of the Lessee
(d)
If during the continuance of the lease any accession is made to the property,
such accession (subject to the law relating to alluvion for the time being in
force) shall be deemed to be comprised in the lease:
(e)
if by fire, tempest or flood, or violence of an army or of a mob or other
irresistible force, any material part of the property be wholly destroyed or
rendered substantially and permanently unfit for the purposes for which it was
let, the lease shall, at the option of the lessee, be void:
Provided
that, if the injury be occasioned by the wrongful act or default of the lessee,
he shall not be entitled to avail himself of the benefit of this provision:
(f)
if the lessor neglects to make, within a reasonable time after notice, any
repairs which he is bound to make to the property, the lessee may make the same
himself, and deduct the expense of such repairs with interest from the rent, or
otherwise recover it from the lessor:
(g)
if the lessor neglects to make any payment which he is bound to make, and
which, if not make by him, is recoverable from the lessee or against the
property, the lessee may make such payment himself, and deduct it with interest
from the rent, or otherwise recover it from the lessor:
(h)
the lessee may even after the determination of the lease remove, at any time
whilst he is in possession of the property leased but not afterwards all things
which he has attached to the earth: provided he leaves the property in the
state in which he received it:
(i)
when a lease of uncertain duration determines by any means except the fault of
the lessee, he or his legal representative is entitled to all the crops planted
or sown by the lessee and growing upon the property when the lease determines,
and to free ingress and egress to gather and carry them:
(j)
the lessee may transfer absolutely or by way of mortgage or sub-lease the whole
or any part of his interest in the property, and any transferee of such
interest or part may again transfer it. The lessee shall not, by reason only of
such transfer, cease to be subject to any of the liabilities attaching to the
lease:
nothing
in this clause shall be deemed to authorise a tenant having an un-transferable
right of occupancy, the farmer of an estate in respect of which default has
been made in paying revenue, or the lessee of an estate under the management of
a Court of Wards, to assign his interest as such tenant, farmer or lessee:
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