Answer 2: INTRODUCTION ‘The right to recover and redeem money is a right of mortgagor under section 60 of the ‘Transfer of the Property Act 1882. The mortgagor has a right, on payment or tender, ata proper time and place, of the mortgage-money, to require the mortgagee to deliver to the mortgagor the mortgage-deed and all documents, possession or re transfer the property relating to the mortgaged property which are in the possession or power of the mortgagee. However, under section 67 the mortgagee has right of foreclose and. sell which gives rise to the contraction and sale and redemption of property or estate so transferred. Contradiction under Right of Redemption & Right of Foreclosure ‘The most important right of the mortgagor is the ht to redeem the mortgage ic., to pay off the mortgage-money and get back the property. At any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgage-money to require the mortgagee to reconvey the mortgaged property to him. ‘The right has been recognised as the principle of equity in England, which was therein created by the Courts of Equity and is also known as equity of redemption. In India, there is no distinction between equity of redemption and right to redeem. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of his right of ownership. The court in Urmila v Sohan Lal held that the mortgagee could not become the owner by efflux of time and therefore no limitation could be applied, therefore the property shall not to vest in the mortgagee. The application for redemption filed by the mortgagor had to be allowed. The Supreme court in has held that the right of redemption i a statutory right which cannot be fettered by any condition which impedes or prevents redemption. Any such condition is held to be void. The Supreme Court has held in Java Singh Dnyanu Mhoprekar v Krishna Balaji Patil that the right of redemption under a mortgage deed can come to an end only in a manner known to law, Such extinguishment of the right can take place by a contract between the parties, by a merger or by a statutory provision debarring the mortgagor from redeeming the mortgage. When a suit for redemption is filed the mortgagee in possession of property will have to deliver the possession to the mortgagor unless he can show that the right of redemption has come to an end or that a suit is liable to bedismissed on some other valid ground, Therefore, a mortgagee cannot acquire any right except what is given by the mortgage deed or if he has pre-existing rights. Clog on redemption to be applicable ‘The right of redemption continues although the mortgagor fails to pay the debt at the due date. Any provision which is inserted to prevent or ipede this right is void as a clog on redemption. The Supreme court in Murarilal vy Devkaran held that if a mortgage deed contained a stipulation which unreasonably restrained the mortgagor's equity of redemption, the courts were empowered to ignore that stipulation and therefore no time period could be affixed to the right of mortgagor in redeeming the property The Supreme Court further held in Purohit K Govind Ji v Vraj Lal K urohi that though a long-term as a period of redemption is not in itself necessarily a clog on equity of redemption but in the changing circumstances of inflation and phenomenal increase in the prices of real estates would create a presumption that it is clog on equity of redemption. Extinguishment of right can be contractual in nature The court in Shakeena v Bank of India has held that the mortgagor's right to redeem the mortgage was not extinguished until there is completion of sale by secured creditor by registration of sale deed. However, under the mortgagee right there are express statutory provisions to sale the property under section 67 of the act. Postponement of Redemption by Subsequent Agreement A subsequent agreement having the effect of postponing redemption may either be an agreement which creates a personal obligation. Each case has to be decided on its facts because no hard and fast rule can be laid down as to whether the agreement operates as a further charge or not. Therefore the mortgagor has right to postpone to redeem the estate by subsequent agreement but the said condition doesn’t bar the right of mortgagee under Section 67 and 69 to institute the decree of sale in the court of law. Right to foreclose or sell by the mortgagee According to section 67 of the Transfer of Property act, at any time after the mortgage money has become due and before a decree has been made for the redemption of mortgaged property or the mortgage money has been paid or deposited, the mortgagee has a right to obtain from the court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property or a decree that the property be sold.The supreme court has clarified in the case of Ramesh Kumar v Yashpal Batra that the difference between right of redemption and the right to foreclosure is that right of redemption is an absolute right whereas right to foreclose is not. The mortgagor cannot limit his right of redemption but the right to foreclose can be made subject to the contract between the pa to mortgage. However it is pertinent to note that the mortgagee cannot foreclose without exhausting his remedies for recovering the money because in order to sell the property a mortgagee has to file a recovery of debt under SARFAESI Act which therefore upholds the right of mortgagor in redeeming the estate so transferred and therefore courts have taken a liberal view in allowing the mortgagor to redeem his property within a reasonable amount of time even after the expiry of time period mention in the mortgage deed. Analysis of Contradiction of right to sale and extinguishment of the right However, it is pertinent to note that there is contradiction to above rule under section 69 of the Transfer of property act, the mortgagee has a right to sell without the intervention of the court. When the mortgage-money is not repaid by the mortgagor, he becomes entitled to sell the property to recover his debt. The Court in Bhupinder Singh Sodhi v UOT has held that the power of sale may either be exercised by all or in the way expressed in the mortgage-deed and therefore the contractual right under mortgage deed shall supersede a statutory right provided under section 60 of the Transfer of Property act. However, the courts in recognizing the equity principle has held that even under section 69 and 67 it is open for mortgagor to apply for injunction for sale of such property by invoking his statutory right under section 60 of the act in the case of Jarup Teja and Co v Peerbhoy Adamj. ‘The Bombay High Court in Jagjivan v Shridhar that the mortgagor is entitled to redeem before under section 60 of the act before the mortgagee initiates the proposal of sale , if so has been has been mentioned under the deed, The right of mortgagor has been recognized a valid right to redeem and therefore a sale by the mortgagee could be treated a clog on redemption as per section 60 of the act, Conclusion Therefore, the mortgagor's right of redemption and the mortgagee’s right of foreclosure are coextensive. Depending upon the terms of the mortgage, when the mortgagor's right to redeem acerues, the mortgagee gets the right to enforce his security. However, this rule may be limited by reasonable terms in the mortgage-deedbut the courts have taken a contradictory approach in interpreting the above- mentioned sections for sale and redemption vis a vis section 60 and 67 of the the Transfer of Property Act 1882. Answer 4: ‘A Lease is not a mere contract but envisages and transfers an interest in the demised property creating a right in favour of the lessee in rem.’ The above said statement captures the complete spirit of the Transfer of Property Act 1882 ,as a right in rem stands for a right against anyone in the entire world, A lease of immovable 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 erops, 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, According to the Section 105 of Transfer of Property Rights 1882 (hereon as Act) ,these are the essential ingredient as follows: a) There should be a transfer of a right to enjoy an immovable property; ) Such transfer may be for a certain term or in perpetuity; ©) The transfer should be in consideration of a premium or rent; 6) The transfer should be a bilateral transaction, the transferee accepting the terms of transfer. (Parties) Competency 1 grant a lease depends upon competency to transfer under sec. 7 of the Act. The lessor must therefore be competent to contract and have title or authority. A lease is a contract where under the transferee accepts certain obligations. The transferee must therefore be one who is capable of contracting. The subject- matter of a lease must be immoveable property as defined in section 3 of the Act The subject-matter is therefore not only land and minerals and buildings, but also benefits to arise out of land. Also, the word demise as stated in the statement in the question given, is not used in the Act, but it is a term of English law commonly usedby conveyaneers in India to denote a transfer by lease. Transfer under a lease is not covered under section 11 but under section 10 of the act as it is a transfer of partial interest, Firstly ,we need Establishment of landlord and tenant relationship, Establishment of landlord and tenant relationship cannot be on the basis of an unregistered note. In the Ahmedsaheb vy Sayed Ismail, AIR 2012 Supreme Court said that even so such relationship can be established on the basis of undisputed facts pertaining to the demised promises. The suit was for recovery of rent. The defendant admitted to his induction into the demised promises, and also admitied arrears of rent, The decree passed could not be faulted only on the ground that the rent note was not registered. According to Section 107 of the said act their are various modes to form a lease.In a Year to Year lease the lesser cannot terminate the lease without giving a notice at the end of a year. Leases for a Term Exceeding One Year Where the term of lease exceeds one year must be registered. The Supreme Court held in Rajendra Pratap Singh v Rameshwar Prasad, that a lease for a term exceeding one year must be through a registered instrument. But for the validity of the instrument the signing of the instrument both by lessor and lessee is not sine qua non. Joint execution of the instrument is sufficient for the purpose. Such lease is registrable even if itis in respect of an agricultural land.In Lease Reserving Yearly Rent .where the rent is reserved for the whole year, there is a presumption that it is a year to year lease and it is registrable. At the end Permanent lease is compulsorily registrable. Where no term is fixed in the lease or instrument of lease contains a provision for certain rights by legal heirs of lesser and lessee after their death, there is presumption of a permanent lease. Section 111 of the said act lays down the modes in which lease can be terminated: 1. By Efflux of Time ,S. 111 (a): Where the term of the lease is fixed, the lease determines after the expiry of time period automatically. In case of a lease for a fixed period, no notice to quit is necessary. Unregistered lease deed cannot be determined by efflux of time,2. By Happening of Some Event ,S. 111 (b): Where the lease contains a condition that the lease will terminate on the happening of some even, it will terminate on the happening of that event. 3. Termination of Lessor's Interest in property ,S. 111(¢): This Clause provides that a lease of immovable property determines where the interest of the lessor in the property terminates, 4. By Merger .S. 111 (d): The doctrine of merger is attracted when a leasehold and revision coincide. If the lessee purchases the lessor’s interest, the lease is relinquished as the same person cannot at the same time be both landlord and tenant. The doctrine of merger is based on the principle of union of two conflicting interests which cannot be held by one person at the same time. Therefore, the leasehold rights in favour of the appellants stand extinguished as stated in Ramesh Kumar Jhambh v. Official Assignee, High Court Bombay, AIR 1993 . 5. By Express Surrender ,S. 111 (¢): That is to say, the lessee yields up his interest under the lease to the lessor, by material agreement between them. Surrender is opposite of merger. In a merger the larger interest is merged with smaller interest Whereas in surrender the smaller interest unites with larger interest. But in both, the lease is determined because two interests unite, 6. By Implied Surrender ,S. 111(f): An i plied surrender takes place either by the creation of new relationship between the lessor and the lessee or by the relinquishment of possession by the lessee and taking over by the lessor. It was held in PMC Kunhiraman Nair v. CR Nagaratnalyer AIR 1993 that there can be implied surrender, if the lessor grants a new leas to a third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the lessee directs his sub tenant to pay the rent directly to the lessor. 7. By Forfeiture Section 111(g): This clause provides that a lease terminates by forfeiture in the following circumstances: (a) in the ease lessee breaks on express condition which provides that on breach of i the lessor may re-enter the property, or (b) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or(©) the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event. (i) Breach of Express Condition ‘The right of forfeiture is exercised only when the condition is in fact broken. In the case of Nil Madhaby. Narottam (1890) , the lease deed contained an express condition that the lessee shall not alienate his leasehold, but he alienated the property in violation of the condition, It was held that the lessor can not forfeit property because the lease deed did not contain provision for re-entry. (i) Denial of Title The second condition for forfeiture arises when the lessee denies the lessors’ right andsets up a title in himself or in a third person. (ii) Insolvency 8. On Expiration of Notice to Quit ,Section 111(h): Clause (h) provides that the lease of immovable property may determine on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Differences between Lease and License Lease is defined under section 105 of Transfer of Property Act 1882 and Licence is defined under Section 52 of the Easements Act, 1882. So from the basic understanding of definition Primary distinetions between Lease and Licence can be ruled out as: Lease License Transfer of interest Mere permission to do something without any transfer of interest Both transferable and heritable Neither transferable nor heritable Comes to an end only in accordance with | Can be widrawn anytime at the pleasure the terms and condition stipulated in the | of granter contract, Entitled to any improvement or accession | No such entitlement made to the propertUnalieected by the transfer of the property by sale in favour of third party and continues Comes 10 an end immediately if the property is sold to a third party Lessee has the right to protect the possession in his own right Licensee cannot defend his possession in his own name as he does not have any propriety right in the property Does not come to an end either by death of the grantor or the grantee ‘Comes to an end with the death of either grantor or the grantee A finding on the question whether the person in possession is a tenant or a licencee is finding of fact. To ascertain if a document creates a lease or a licence, the substance of the document should be preferred to its form, Where it creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of a licence.The which legal possession and control continues with the owner, decisive consideration is the intention of the parties, but the intention must be gathered on a true construction of the agreement and not merely from the description iven by the parties .Also it was established in the case of Achintya Kumar Saha y Nanee Printers, where an issue relating to tenancy and licence was sorted out by the court referring {o the intention of the parties, and it was held by the court that intention of the parties who are forming an agreement becomes the deciding factor to conclude the real nature of the agreement made.