Court : Gujarat
Reported in : [2005]126CompCas666(Guj); [2004]56SCL456(Guj)
..... may be available to the person who is in possession under section 53a of the transfer of property act, but if a property is mortgaged to a bank and after such mortgage, an agreement for sale is entered into and possession is transferred by the mortgagor to some third party, the proposed purchaser would not be entitled to have the protection under section 53a against the mortgagee of the property when it is sought to be enforced under the act, because as per the language of section 13(1) the act, the same is having over-riding effect over ..... . he also submitted that as such in such a situation, the provisions of the act cannot be invoked and the proper steps are required to be taken under indian succession act and other relevant provisions of the act and, therefore, he submitted that in absence of action being taken by the bank, the present action of the bank cannot be maintained ..... in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:_ (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1970Guj12
..... oza that much though the latter part of the definition of 'contract for sale' given in section 54 of the act provides that it does not create any interest or charge on such property, by reason of section 55(6)(b) of the transfer of property act, the buyer is entitled to claim a charge on the property for the amount of any purchase money properly paid as also for the earnest money ..... advocate for the respondent, that the word 'transfer' contemplates nothing short of a transfer of property as such and, at any rate, according to him, in absence of any definition given to the term 'transfer' in the ordinance or in the act as the case may be, one has to turn to the provisions contained in the transfer of property act. ..... where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this chapter) has the following rights:- (a) if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest: ** ** ** ** **' the defendant had contracted to sell the property as per the terms and conditions set out in ..... as 'transfer in relation to any property' is required to be considered, one would be justified in looking at the provisions governing the transfer of property contained in the transfer of property act, 1882. ..... by the defendant as per the contentions raised in his written statement ex. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1970Guj122; (1969)GLR950
..... the argument put forward on behalf of the plaintiff was that though the contract of lease had not been registered the plaintiff could claim possession under it in view of the provisions of section 53-a of the transfer of property act, because the defendant company would be debarred from enforcing against the plaintiff any right in respect of that property which the plaintiff had already taken possession. ..... the question arose whether under section 53-a of the transfer of property act, a person in possession of the property under an unregistered contract of sale could maintain such an action. ..... even this limited right to protect his possession under section 53-a of the transfer of property act is not available against a transferee for consideration who has notice of the contract or of the part performance thereof. ..... if the auction purchaser is a person claiming under the transferor then certainly the plaintiff could protect his possession against him, because the auction purchaser would be equally estopped from enforcing any right against him as the judgment-debtor was. ..... such a contention was not raised by the defendant in the written statement and there was no issue raised on the point. ..... but since the judgment-debtor has not been made a party to the claim petition or to the suit, the judgment-debtor will not be bound by any decision given in his absence. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1968Guj193; (1968)GLR161
..... as regards the application of the doctrine of lis pendens in relation to the right of the mortgagor in possession, to grant certain lease under section 65a of the transfer of property act, it was observed at p. ..... keshavji : air1926bom567 , in which it was held that in the absence of any express power of leasing given in a mortgage deed or by other express agreement between the mortgagor and the mortgagee, the mortgagor has no power to grant a lease of the mortgaged property so as to be binding against the mortgagee, and a tenant under such a lease has no right as against the mortgagee to rent paid in advance to the mortgagor, and s. ..... (e) in the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified. ..... (2) (a) every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1963Guj239; 1963CriLJ369; (1963)0GLR833
..... it is, therefore clear that the words 'buyer' and 'seller' in section 55(2) of the transfer of property act refer also to a person who has entered into an agreement for sale of property and also to a person who has entered into a contract for the purchase of property and not merely to a person who hag purchased the property or who has sold the property. ..... sub-section (2) of section 55 of the transfer of property act provides that the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. ..... for the reasons mentioned above, i hold that section 55 of the transfer of property act applies even at the stage where there is a contract to sell immoveable property as in the present case.6. ..... there has been a difference of opinion among high courts on the question whether section 55 of the transfer of property act applies to an agreement to sell immoveable property or whether it applies only to a completed conveyance. ..... act applies in the absence of a contract to the contrary. ..... x x x x 'concealment can be dishonest even in the absence of a legal obligation to speak. ..... also any act, done, or precaution taken to prevent the fact from being brought to the notice of the other party, is concealment even in the absence of a duty to state it. ..... if the intention is dishonest, the concealment is dishonest even in the absence of a duty to speak'. 3. .....
Tag this Judgment!Court : Gujarat
Reported in : (2008)2GLR1048
..... looking to -(a) the alternative prayer under section 11(c) of the plaint; and (b) section 114 of the transfer of property act, 1882; and(c) the fact that the rent with interest and cost is already deposited; and (d) the lease is perpetual lease, in fact, the plaintiff is entitled to get the rent only;(e) clause 6 of lease agreement allows transfer of property;no irreparable loss will be caused to the plaintiff, if stay as prayed for is not granted. ..... in view of the aforesaid decision, section 13(2)(i) of the bombay rents, hotel and lodging house rates control act,1947, has been compared with section 114 of the transfer of property act,1882, and it has been held by hon'ble supreme court that if the amount of rent is paid, the forfeiture of the lease generally will not be granted by the court. ..... 4.1 it is further submitted that the case is not covered under section 114 of the transfer of property act,1882, but it is covered under section 114a of the transfer of property act,1882 and, therefore, mere deposition of the amount of rent will not be useful to defendant nos. ..... notice as alleged by the original plaintiff was given by the original plaintiff under section 114 of the transfer of property act,1882, has never been received by the appellant - original defendant no. 2. ..... learned counsel for the original plaintiff submitted that there are avernments made in the written statement by defendant nos. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR2009Guj123
..... however, the decree for specific performance was not granted in favour of the plaintiff on the ground that the contract for sale of immovable property does not by itself create interest or charge on such property under section 54 of the transfer of property act. ..... the trial court has further held that the contract for sale of immovable property does not by itself create any interest or charge on such a property under section 54 of the transfer of property act.13. ..... plaintiff before the appellate court and after discussing the correct legal position and decided case law on the subject the appellate court had come to the conclusion that the plain reading of the section 54 of the transfer of property act does not create any bar. ..... after discussing the provisons contained in section 54 of the transfer of property act as well as after taking into consideration the ratio laid down by the hon'ble supreme court in the case of t.m. ..... merely because it is lawful to grant specific relief, the court need not grant theorder for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner: certain circumstances have been mentioned in section 20(2) of the specific relief act, 1963 as to under what circumstances the court shall exercise such discretion. ..... in absence of any argument or any challenge even at the time of hearing of the appeal before the appellate court, it cannot be said expected from the appellate court to deal with or decide the said issues. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1972Guj37; (1971)GLR980
..... he is authorised under the provisions quoted above (section 76 of the transfer of property act) to let it out to a tenant and in the case of a house or a shop a month to month tenancy in the absence of a contract to the contrary, would be the usual tenure under s. ..... in the light of the observations made by the supreme court holdings that the lease may enure in certain cases even after the mortgage had been redeemed with greatest respect. ..... sha shamji jivraj, reported at 59 bom lr 684 = (air 1958 bom 53), it was held that-'under section 111(e) of the transfer of property act, 1882, when the interest of the mortgagee defendant no. ..... he urged that the notice apparently was not in the form envisaged in section 106 of the transfer of property act but the notice given by a mofussil lawyer should be broadly interpreted and such technicality should not weight with the court in the interest of justice. ..... pandya urged that the defendant had taken a plea from the beginning in his written statement that apparently the suit appeared to be between the landlord and tenant but as, the plaintiff had, in the next breathe, stated that there was no relationship of landlord and tenant between the parties, the defendant had urged in the written statement that if the plaintiff considered the suit for possession against the trespasser, he should pay full ..... the duration of the mortgagee's interest determines, his position an the lessor. .....
Tag this Judgment!Court : Gujarat
Reported in : (1985)2GLR658
..... now, it is well settled that by an agreement to sell even if the possession of the land is handed over to the vendee, no interest in the property is created but at the same time under section 40 of the transfer of property act such contract creates an obligation annexed to the ownership of immovable property not amounting to an interest in the property but which obligation may be enforced against a transferee with notice of contract or a gratuitous transfer of the property. ..... the court has also considered section 52 of the transfer of property act and held that even agreement to sell would be also hit by the doctrine of lis pendens by holding that the creation of a contract, capable of specific performance, though not an alienation by itself, is a mode of dealing with the property pregnant with the very mischief which section 52 of the transfer of property act seeks to obviate. ..... there is no other mode of transfer of immovable property prescribed under the transfer of property act, yet under section 8 of the gujarat agricultural lands ceiling act the legislature mentioned it that apart from sale, gift, mortgage, lease, exchange or partition if the property is transferred by surrender or otherwise it would be a transfer. ..... he has certainly not executed any conveyance to the petitioner. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1963Guj328; (1963)GLR780
..... but under section 111(c) of the transfer of property act, a lease of immovable property determines where the interest of the lessor in the property terminates. ..... 3 does not allege that by virtue, of the provisions contained in section 76(a) of the transfer of property act he is entitled to continue to occupy the properly notwithstanding the redemption. ..... in view of the provisions of section 111(c) of the transfer of property act and in view of the fact that the tenant himself had not relied on section 76(a) of the t. p. ..... p, code reads as follows:'(1) where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed ty any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. ..... 3 did not file his written statement. ..... of which this appeal arises can be briefly stated as follows : in a redemption suit by 3 mortgagor against the two mortgagees, the appellant, who was 8 tenant of the mortgagees was also joined as a party, but he did not file a written statement. .....
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