Transfer of Property Act

Transfer Of Property

Q. What do you understand by transfer of property. what is its effect. (1998)(2000)

1. Introduction:

Under transfer of property act every person is competent to contract, authorized to dispose transferable property or is entitled to transferable property. transfer of property act deals with the transfer of moveable property. generally transfer of property is made by the owner of property.

2. Relevant provisions:

Sec. 5, 8 transfer property act.

3. Definition of transfer of property:

According to sec. 5 transfer of property means an act by which a living person conveys property, in present or in future to one or more other living persons, or to himself and one more other living person and :to transfer property: is to perform such act.

Explanation:

Living person: includes a company or association or body of individual, whether incorporated or not, but nothing here incoorporated  shall effect any law for the time being law force relating to transfer of property yo or by companies, associations or body of individuals.

4. Essentials of valid transfer:

I. Competency of transferor:

Transfore should be competent to transfer the property.

(i) Major (ii) Sound minded

(iii) Not disqualified by law

II. Competency of transferee:

The transferee must be capable of holding property and must not be a person disqualified by law to receive a transfer.

III. Transfer must be between living person:

It is necessary that transfer must be made by one living person to another living person.

IV. Existence of property:

 For a valid transfer the property must be in existence at the time of transfer.

V. Lawful object:

The object of transfer of property must be lawful.

VI. Lawful consideration:

The consideration must also be lawful. law does not recognize a transfer made for an unlawful consideration.

VII. Property must be transferable:

Property must be transferable under Sec. 6 of the transfer of property act.

VIII. Identical:

Transfer and transferee must be identical.

IX. Other formalities:

(i) Attestation.

(ii) Registration etc.

X. Immoveable property:

Transfer must be concerned with immoveable property.

5. Modes of transfer of property under transfer of property act 1882:

Under transfer of property act there are six modes of transfer of property which are following.

(i) Sale  (ii) Mortgage   (iii) Lease  (iv) Exchange

(v) gift  (vi) actionable gift.

6. Effect:

Operation of transfer

According to Sec. 8

Unless a different intention is expressed or necessarily implied, a transferee all the interest which the transferor is then capable a passing in the property and in the legal incidents thereof. such incidents include, where the property is land, the easement there to the rents and profit there of securing after the transfer and all things attached to earth and where the property is machinery attached to the earth, the moveable parts thereof and where the property is house, the easement annexed thereto the rent thereof, accruing after the transfer and the locks, keys, bars, doors, windows and all other thing provided for permanent use there with and where the property is debt or other actionable claim, the securities therefore except where they are also for other bevt or claims not transferred to the transferee, but not arrears of interest accured before the transfer, and where the property in is money or other property yielding, income the interest of income thereof accruing after the transfer takes effect.

7. Conclusion:

Transfer of property is to convey property whether moveable or immoveable by one person to another person. it is effected by transfer of ownership and all rights vesting in the property by free consent and voluntary action of the parties.

Award

Q. What is award as understood under the land acquisition act? what are the steps as land acquisition collector takes before making an award. (2000)(2001)(2003)

Q. What do you know about 'award by collector"? discuss its important ingredient.(2006)

Q. What steps are taken by the land acquisition collector before making an award explain. (2007)

1. Introduction:

The word award has not defined in land acquisition act. the land acquisition officer is in no sense a judicial officer. the proceeding before him can not be called judicial proceeding. he is empowered to make award under the land acquisition act. the jurisdiction of the collector is limited. he exercises the executive and administrative authority. the award cannot be enforced as decree of the court.

2. Meaning of award:

Oxford dictionary: Award is judicial decision.

3. Definition of award

1988 CLC 715

Word award thought not defined in land acquisition act, yet is used, with reference to compensation for land acquired, both award made by collector and judgment passed by acquisition judge on reference by collector on such award are to be deemed award.

4. Contents of award:

Following are essential of the award.

(i) Area of land: Measured and true area of the land is mentioned by the collector.

(ii) Amount of compensation: Collector shall describe the amount of the compensation.

(iii) Division of compensation:The share of persons of compensation shall be mentioned in the award.

(iv) Signature: Collector should sign his award.

5. Procedure or steps taken by land acquisition officer before making award:

Following steps shall be taken by the land acquisition officer before making award.

(i) Preliminary investigation and hearing of objections:

The land acquisition officer will investigate the matter and hears the objections.

(ii) Declaration of intended acquisition land and order there upon:

Declaration of intended acquisition of land will be made and also collector shall make such order.

(iii) Notice:

Notice to the persons interested will be issued.

(iv) Power to require and enforce the making of statements as to the names and interests:

Collector has power to require and enforce the making of statement as to the names and interest.

(v) Enquiry and award by the collector:

The collector shall make enquiry as to the objection which has been raised by any person interested, after hearing of objection the collector shall make award.

(vi) Finality of Award:

Award would become final when filed in the office of collector.

6. Correction of mistake in aware:

Any arithmetical or clerical mistake can be removed by the.

(i) Collector himself or.

(ii) On application of any party.

7. Conclusion:

Award is decision of land acquisition officer. it is made after following the procedure in the land acquisition act, any person interested who is not satisfied with award can seek remedy.

Determination of Compensation

Q. What matters a court may take into consideration determining compensation to be awarded for the land acquired under this act. (2002)(2003)(2006/S)

1. Introduction:

Land acquisition act empowers government to acquire land only for public purpose or for companies. Compensation is determined and paid to those private persons or bodies whose land is so acquired. Different matters are kept in view while determining the value of the property which is acquired.

2. Relevant provisions:

Sec. 23 of land acquisition act.

3. Meaning of compensation:

Osborn's concise law dictionary:

A payment to make amends for loss or injury to person or property or as recompense for some deprivation.

4. Right to compensation:

Right to compensation is incidental to the unavoidable right to property. the person interested in entitled to claim compensation.

5. Matters to be considered in determining compensation:

Following are matters which are taken into consideration while determining the compensation.

(i) Market value of land:

The market value of land at the date of the publication of the notification under Sec. 4

(ii) Compensation for standing crops and trees:

The damage sustained by the person interested by reason of the taking of any standing crops or by trees by taking possession.

(iii) Damage by severance:

The damage sustained by the person interested at the time of collector's taking possession of land by reason of severing such land from his other land.

(iv) Damage for injuries effect other property:

The damage sustained by the person interested at the time of the collector's taking possession of land by reason of the acquisition effecting his other property, moveable or immoveable, in any other manner, or his earning.

(v) Loss of earning:

The damage sustained by the person interested while taking possession of the collector and the person interested is compelled to change his residence place of business, the reasonable expenses incidental to such change.

(vi) Diminution of profit:

The damage sustained at the time of taking possession of land resulting from diminution of profit of the land between the time of publication of declaration under Sec. 6 and the time of the collector's taking possession of the land. in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value, in consideration compulsory nature of acquisition.

6. Conclusion:

Under land acquisition act different matters are taken into consideration for fixation of compensation. Which is paid to injured person. the court has discretionary powers while determining the compensation.

Distinguish Between Sec. 18 And Sec. 30

Q. Explain the difference between a reference to court under Sec. 18 Sec. 30 of the act. (2004)

1. Introduction:

If the award which is not acceptable or any person, remedy is provided under land acquisition act against the award of the collector. the collector in his own motion can make reference to the court in respect of apportionment of the compensation.

2. Relevant provisions:

Sec. 18 and 30 land acquisition act.

3. Meaning of reference:

Oxford concise dicitionary.

"The referring of a matter for decision or settlement or consideration to some authority."

4. Reference is not an appeal:

An award made by the collector is not a judicial act so the reference sent to the court is not an appeal award is mere offer for compensation.

5. Kinds of reference under land acquisition act:

(i) Reference under Sec. 18

(ii) Reference under Sec. 30

6. Difference between reference  to court under Sec. 18 and Section 30:

(i) As to nature: Sec. 18 gives statutory right.

There is no statutory right under Sec. 30.

(ii) As to object: Object of Sec. 18 is to correct the award. Object of Sec. 30 is to settlement of dispute.

(iii) As to grounds: Section 18 provides following grounds for reference.

(i) Measurement of the land.

(ii) Amount of compensation.

(iii) Persons to whom it is payable.

(iv) Apprisonment of the compensation.

Under Sec 30 dispute as to apportionment is the ground of reference.

(iv) As to discretion of collector:

Under Sec. 18 collector has no discretionary power.

Under Sec. 30 collector has discretionary power.

(v) As to mode:

Under Sec 18 collector can not refer in his own motion. Under Sec. 30, collector can take suo motto action.

(vi) As to limitation:

Time is prescribed for filing reference under Sec. 18

Time is not prescribed under Sec. 30.

(vii) As to interest of Govt:

Interest of the Govt. is involved under Sec. 18

No interest of the Govt. is involved under Sec. 30

(viii) As to scope: Scope of Sec. 18 is wider.

Scope of Sec. 30 is narrower.

(ix) As to person entitled to reference:

Under Sec. 18 persons interested are entitled to reference to the court.

Under Sec. 30, the collector is entitled to reference to the court.

(x) As to remedy:

Sec. 18 provides remedy for person interested.

Sec. 30 helps only collector in settling dispute.

7. Conclusion:

Reference can be made under Sec. 18 and 30 of the land acquisition act but both are different in nature.

Distinguish Between Simple And Usufructary Mortgage

Q. What do you meant by simple mortgage. discuss its essentials and how it differs from a "Usufructary mortgage." (2004)\

1. Introduction:

A mortgage is security for the payment of debt. Mortgage is created by act of the parties by a written document providing security for the performance of a duty or the payment of the debt.

2. Relevant provisions:

Sec. 58 transfer of property act.

3. Definition of mortgage:

"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.

Mortgagor: The transferor is called mortgagor.

Mortgagee: The transferee is called the mortgagee.

Mortgage money: The principal money and interest of which payment is secured for the time being is called mortgage money.

Mortgage deed: The instrument if any which the transfer is effected is called a mortgage deed.

4. Essential of mortgage:

Essentials of mortgage are as under.

(i) Transfer of am interest.

(ii) Specific immovable property.

(iii) Repayment of loan or debt.

5. Nature of mortgage:

The transfer of property act 1882 deals with the mortgage of immovable property. it does not deals with the moveable property.

6. Distinguish between simple mortgage and usufructary mortgage:

I. As to liability: In simple mortgage, the mortgagor binds himself to pay the mortgage money.

In usufructary mortgage there is no such liability.

II. As to possession: Possession of mortgage property is not given to the mortgagee. Possession of mortgage property is given.

III. As to right of sale: In simple mortgage, the mortgagee has a right to sale the mortgaged property. In usufructary mortgage there is no such right.

7. Conclusion:

mortgage is transfer of interest simple mortgage and usufructury mortgage are two various kinds of mortgage. both are different from each other.

Document Of Which Registration Is Optional

Q. What are the document on which registration is optional. (2000)(2003)

1. Introduction:

All sorts of documents are not compulsorily registreable under the registration act there are documents on which registration is at the option of the party. the non-registration of such documents does not effect the validity or admissibility in the evidence.

2. Relevant provisions:

Sec. 17, 18 the registration act.

3. Documents of which registration is optional:

According to Sec. 18

"Any document not required to be registered under Sec. 17 also be registered under act."

4. Instances of documents:

Following are instances of document of which registration optional.

(i) Will: Will are not be compulsorily registreable.

Case law: 1986 CLC 372

The will by a Muslim does not require registration form of will is completely immaterial. it can be made either verbally or in writing. registration act does not require a will to be registered.

(ii) Power of attorney:

Power of attorney need not be registered. however it can be registered at the option of the party.

(iii) Agreement to sell:

1989 CLC 1318

Agreement to sell does not need to be registered under the registration act.

(iv) Agreement for partition:

Agreement for partition does not need to be registered.

(v) Instrument creating tenancy for a year or less:

Instrument creating tenancy for a year or less than one year need not to be registered.

(vi) Promissory note:

Promissory note are not compulsorily registreable. however a promissory note may be registered at the option of the party.

(vii) Agreement of mortgage:

Agreement of mortgage may be registered at the option of the party.

(viii) Deed of adoption:

A deed of adoption may be registered at the option of the party.

(ix) Contracts and bounds:

Simple contracts and bounds may be registered under the registration act.

(x) Releases:

A release is not compulsorily registreable. it may be registered at the option of the party.

5. Scope:

Sec. 18 explains that all those document other than those required to be registered under Sec. 17 are optionally registreable under this present act.

6. Conclusion:

under the registration is optional at the party if such documents are not registered it does not lose its value.

Documents Of Which Registration Is Compulsory

Q. What are documents which are required to be registered compulsory? (1999)(2002)(2004)

1. Introduction:

All sorts of documents are not compulsorily registrable in the registration act there are documents which require registration. documents required under the registration act to be registered loose evidentiary value and shall not be admitted in evidence if they are not so registered.

2. Relevant provisions: Sec. 17 registration act.

3. Documents of which registration is compulsory:

Following are document of which registration is compulsory.

(i) Instrument of gift:

Instruments of gift of immoveable property are compulsory registrable under the registration act.

(ii) Non-testamentary instrument:

Other non-testamentary instruments which purport of operate to creat, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immoveable property.

Non-testamentary instrument:

Every document which is not a will or codicil is called non-testamentary instruments.

(iii) Instrument relating to receipts:

Non-testamentary instruments (other than the acknowledgement of a receipt or payment made in respect of any transaction to which an instrument registered under clause (a) relates which acknowledged of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, tile or interest.

(iv) Lease deed:

Lease of immoveable property from year to year or any term exceeding one year or reserving a rent.

(v) Instrument relating to decree and order:

Non-testamentary instruments transferring or assigning any award when such decree or order or award purports or operates to create declare, assign, limit, or extinguish whether in present or in future, any right title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.

4. Other registrable documents:

Following are the documents which should also be registered.

(i) Mortgage deed. (ii) Dower deed

(iii) Debenture. (iv) Adoption deed.

(v) Instrument of lease. (vI) Compromise deed.

(vii) Sale certificates. (viii) Sale deeds

5. Scope:

Sec. 17 enumerates the documents which are comulsorily registerable. the effect of not registering a document compulsorily registerable is that it can not effect any immoveable property.

6. Document executed in foreign state:

Document executed in foreign state which is compulsorily registerable according to the law of state and which is not so registered is not admissible evidence.

7. Conclusion:

Document requiring registration under Sec. 17 of the registration act must be registered. this section establishes the necessity for registration with regard to certain classes of documents.

Domicile

Q. What do you understand by domicile? how a new domicile be acquired. (2002)

Q. What is procedure of acquisition of new domicile. (2007)

1. Introduction:

Under the succession act the word domicile has not been defined. a man can acquire a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.

2. Relevant provisions:

Sec. 10, 11, 13, i4, 15, 18 succession act.

3. Definition of domicile:

Dr. Phillimore:

"Residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for a unlimited time.

4. Acquisition of domicile:

Domicile can be acquired by following three ways.

(a) Of origin of birth.

(b) By operation of law.  (c) Of choice.

5. Importance of domicile:

The civil status of a person, or his legal rights and duties, including capacity, are determined by the law of domicile.

6. Acquisition of a new domicile:

A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.

Explanation:

A man is not to be deemed to have taken up his fixed habitation in Pakistan merely by reason of his residing there in civil, military, naval or Air force service of Pakistan or exercise of any profession or calling.

7. Special mode of acquiring domicile in Pakistan:

Any person may acqiure a domicile in Pakistan by making and depositing in some office in Pakistan, appointed in his behalf by the provincial government, a declaration in writing under his hand of his desire to acquire such domicile. Provided that he has been resident in Pakistan for one year, immediately preceding the time of his making such declaration.

8. Continuance of new domicile:

A new domicile continues until the former domicile has been resumed or another has been acquired.

9. Domicile of minor:

Domicile of a minor does not change with that of his parent, if the minor is married, or holder any office or employment in the service of the state or has set up with the consent of the parent, in any distinct business.

10. Domicile acquired by woman on marriage:

By marriage a woman acquires the domicile of her husband. if she has not the domicile before.

11. Lunatic's acquisition of new domicile:

An insane person cannot acquire a new domicile is any other way than by his following the domicile of other person.

12. Conclusion:

Place is property the domicile of a person in which he has voluntarily fixed his abode, not for a more special or testamentary purpose, but with a present intention of making it has permanent home.  a person can apply in written in the office in Pakistan for domicile.

Duties Of Registering Officer

Q. What are the duties of a registering officer when a document is presented for registration discuss. (2000)(2001)(2004)

Q. What procedure is adopted by registering officer when a document is duly presented to him for registration? explain (2007)

1. Introduction:

When a document is presented for registration to the registration officer, he endorse on every document presented before him, date, place or registration and signature of the person presenting such document and gives receipt for such document to person presenting the same.

2. Relevant provisions: Sec. 52-62 registration act.

3. Duties of registering officers when document is presented:

The duties of registering officer when document is presented, are following.

(i) Endorsement on document:

The day hour and place of presentation and signature of every person presenting a document for registration shall be endorsed on every such document at the time of presenting it.

(ii) Duty to give receipt:

A receipt of such document shall be given by the registering officer for person presenting the same.

(iii) Duty to copy every presented document:

A document admitted to registration shall without delay be copied in the book appropriate according to the order of its admission.

(iv) Duty to issue certified copy:

It is the duty of the registering office to issue certified copy of the document registered in his office to person who applied for such copies.

(v) Certificate of registration:

The registering officer shall endorse there on a certificate containing the word registered together with the number and page of the book in which the document has been copied. such certificate shall be admissible for purpose of proving that the document has been duly registered in manner provided by this act.

(vi) Duty to return registered document:

The Duty document if registered completely by the registering officer shall be returned to the person who presented the document for the registration or the person nominated by him.

4. Conclusion:

Registering officer is empowered under the registration act to register a document presented by a person. If he is not satisfied he can refuse to register the document. On his refusal to register the document. On his refusal to register the document different remedies are available.

Q. What are the legal effects on non-registration of a document required to compulsory registered? (2000)(2001)

Q. What is effect of non-registration of documents required to be registered?  Introduction:

Under the registration act there are documents which require compulsory registration. if such documents are not registered there will be on evidentially value.

2. Relevant provisions: Sec. 49 registration act.

3. Documents of which registration is compulsory:

Following are the document of which registration is compulsory under the registration act.

(i) Instrument of gift.

(ii) Non-testamentary instrument.

(iii) Instruments relating to receipts.

(iv) Lease deed.

(v) Instrument relating to degree and orders.

4. Purposes of registration:

Following are purposes of registration of document.

(i) Determination of legal status of document.

(ii) Admissibility of evidence in the court.

5. Effect of non-registration:

According to sec. 49 document required to be registered under this act or under any earlier law providing for or relating to registration of document shall.

(a) Operate to create declare assign limit or extinguish whether in present or in future any right title or interest whether vested or contingent to or in immoveable property or.

(b) Confer any power to adopt unless it has been registered.

6. Illustration:

A sells his house to b for rs. 2000,000/= and executes a sale deed in favour of b but b dose not get it registered and in case of dispute about such property this document cannot be presented as evidence in the court.

7. Essentials condition for application:

(i) Document.(ii) Registration should be compulsory.

(iii) Non-registration of such document.

8. Position of un-registered document:

(i) No evidentiary value.

(ii) Oftenly not admissible in evidence.

9. Circumstances when such instrument can be received in evidence:

Following are the circumstances when such instrument can be received in evidence.

(i) Matters of specific performance.

(ii) Receipts for consideration.

(iii) Transactional matters.

(iv) Evidence of an offence.

(v) Debt matters.

(vi) Maters of delivery of possession.

(vii) Proving of hand writing.

10. Conclusion:

Documents which are compulsorily registerable if are not registered have no evidentially value. such unregistered document would not operate to create declare assign limit or extinguish in present or in future any title or interest whether vested or contingent to or in immoveable property.

Essentials Of Lease

Q. Define lease? what are essentials of lease agreement. how does the lease of immoveable property come to end. (2003)

1. Introduction:

A lease is a transfer of a right to enjoy the property of lessor is put in possession of the property. the rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in lease.

2. Relevant provisions:

Sec, 105, 108.

3. Definition of lease:

A lease of immovable property of right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration for 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".

Transferor: The transferor is the lessor.

Transferee: The transferee is called lessee.

Price: The price is called premium.

Rent: The money, share or other thing to be so rendered is called the rent.

4. Essentials element of lease:

Following are essentials elements of lease.

(i) Immoveable property:

Lease must relate to immoveable property.

(ii) Fixed duration of enjoyment:

Such enjoyment of right of property must be for fixed duration.

(iii) Transfer of right:

There must be transfer of such right of enjoyment.

(iv) Consideration:

It must be for consideration.

(v) Acceptance:

The transfer must be accepted by the transferee.

5. Kinds of lease:

Following are kinds of lease.

(i) Lease for certain time. (ii) A periodic lease.

(iii) Lease in perpetuity.

6. How the lease come to end:

Lease of immoveable property come to end in the following ways.

(i) Laps of time:

By efflux of the time limited thereby.

(ii) Happening of a specified event:

Where such time is limited conditionally on happening of some event lease of immoveable property come to end.

(iii) Termination of the interest of lessor:

Where the interest of the lessor in property terminates on, or his power to dispose of the same extends only to, on the happening of such event.

(iv) Merger:

In case of the interest of the lessore and lessor in the whole of the property become vested at the same time in one person in the same right.

(v) Express surrender:

That is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement, between them.

(vi) Implied surrender:

Lease of immoveable property may come the end by implied surrender.

(vii) Forfeiture:

That is to say in the case the lessee breaks and express condition which provides that on breach thereof the lessor may re-enter or in the 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 lease provides that lessor may re-enter on the happening of transferee gives notice in writing to the lessee of his intention to determine the lease.

(viii) Expiration of time given in notice of quit:

On the expiration of a notice to determine the lease, or quit or of intention to quit, the property leased, duly given by one party to other.

7. Conclusion:

A lease is transfer of an interest of immoveable property. Under transfer of property act there are different modes which a lease in respect of immoveable property may be determined.

Exchange

Q. Write note on exchange. (2002)

1. Introduction:

Exchange is a mutual transfer of the ownership of property by two persons. There can be no exchange where there is no transfer. The price is not present in this mode of transfer of immoveable property.

2. Relevant provisions:

Sec. 118, 119, 120 transfer of property act.

3. Definition of exchange:

According to Sec. 118.

"When two persons mutually transfer the ownership of one thing for the ownership of another, neither things or both things being money only, the transaction is called exchange."

4. Illustration:

A transferred to B land worth Rs. one lack and B transferred to A a house worth Rs. ninty thousand to B. this transaction is exchange.

5. Exchange how effected:

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

6. Right of party deprived of thing received in exchange:

If any party to exchange or any person claiming through or under such party is by reason of any defect in the title of other party deprived of thing or any part of the thing received by him in exchange, then unless a contary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person do deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.

7. Rights and liabilities of parties:

Each party to an exchange has the rights and is subject to the liabilities of a sellor as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.

8. Conclusion:

To conclude I can say that, in exchange property is given in return for property is one of the mode of transfer of property under the transfer of property act.

Fraudulent Transfer

Q. What is the effect of fraudulent transfer of property under transfer of property act? (2002)

1. Introduction:

A transfer made with intention to defeat any right of the transferee or of any other person interested therein is fraudulent transfer of property. Such transfer is not void but voidable at the option of person named.

2. Relevant provisions:

Sec. 53 transfer of property act.

Cross reference Sec. 17 of contract act.

3. Fraudulent transfer: According to Sec. 53

Every transfer of immoveable property made with intent to defeat the creditors of the transferor shall be voidable at the option of any creditors so defeated or delayed. Nothing in this section shall impair the rights of a transfer in good faith and consideration. noting in this sub-section shall effect any law for the time being in force relating to insolvency a suit instituted by a creditor (which term included a decree holder whether he has or has not applied for execution of decree to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of or for the benefit of all the creditors. every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. for the purpose of this sub-section no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

4. Illustrations:

(i) A being heavily indebted tries to dispose of his immoveable property and covert it into cash to defeat his creditors B being aware of all these facts, purchased such property from A.  this sale is voidable at the option of creditors so defeated. if however, B is not aware of the above circumstances and purchase the property in good faith, the sale would not be void.

(ii) A settles his property on B for the benefit of his daughter byt subsequently sells it G for consideration. here the first transfer shall not be presumed to have been effected with intent to defraud the subsequent purchaser G, the settlement in favour of B will hold good unless. G proves that the first transfer was fraudulent.

5. Determination of fraudulent intention:

Fraudulent intention may be determined by the following evidence.

(a) That the debtor made a voluntary settlement.

(b) That the debtor a grossly inadquate consideration without reserving sufficient property for the payment of his debt.

(c) That he put all his property out of reach of those who might become his creditors before embarking on a hazardous enterprise or.

(d) That the transfer is in embarrassed circumstances and the transaction is between relation.

(e) That the transfer was a mere cloak for retaining a benefit for the transferor.

6. Essentials of fraudulent transfer:

(i) Transfer with intent to commit fraud.

(ii) Fraud is intended against.

(a) Either to defeat or delay the creditors.

(b) To defraud subsequent transferees.

(iii) Suit by creditors must be representative in nature.

7. How transfer may be avoided:

Fraudulent transfer may be avoided by following ways.

(i) By filing a suit to setaside the fraudulent transfer.

(ii) By pleading S. 53 in defence.

(iii) By pleading S. 53 in execution proceeding.

(iv) Avoiding by conduct.

8. Conclusion:

Fraudulent transfer is voidable at the option of creditor or transferee but bonafied  transfers for consideration without knowledge of the option is exception to this rule.

Gift

Q. Define gift? how is transfer of property effected by gift? in what way it is different from gift under Islamic law. (2003)(2004)

1. Introduction:

The transfer of certain existing moveable or immoveable property is called gift if it is made voluntarily without consideration by one person to another person. a gift can also be revoked.

2. Relevant provisions:

Sec. 122, 123 transfer of property act.

3. Definition of gift:

Gift is transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor to another called the donee, and accepted by or on behalf of the donee.

4. Essentials of a valid gift:

Essentials of a valid gift are as under.

(i) Parties: There are two parties in gift on is called  donor and other is called donee.

(ii) Subject matter: The subject matter of the gift may be movable or immovable property.

(iii) Existing property: Such property must be exist at the time of gift.

(iv) Consideration: Property is made without consideration.

(v) Voluntarily: The transfer by gift should be made voluntarily.

(vi) Acceptance: There must be acceptance of gift. acceptance must be made during the life time of donor.

5. Transfer how effect:

In case of immoveable property:

For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

In case of immoveable property:

For the purpose of making a gift of immoveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. such delivery may be made in the same way as goods sold may be delivered.

6. Concept of gift under Muslim law:

Under Muslim law, gift has following three essentials.

(i) Declaration of gift by donor.

(ii) Acceptance by donee.

(iii) Delivery of possession.

7. Distinguish between gift under Muslim law and T. P. A.

(i) As to procedure of moveable and immoveable property:

There is same procedure for moveable property and immoveable property.

Under transfer of property act there is different procedure for moveable property and immoveable property.

(ii) As to delivery:

Delivery must be made under Islamic law.

Delivery is not necessary under T. P. A.

(iii) As to mode:

Under Muslim law written instrument is not necessary.

Under T. P. A written instrument for immoveable property is necessary.

(iv) As to oral gift:

Oral gift can be made under Islamic law.

Under T. P. A no oral gift can be made.

(v) As to gift to future property:

Gift of future property can be made under Islamic law.

Gift of future property can not made under T. P. A.

8. Conclusion:

Gift is an unconditional transfer of property, made immediately and without any exchange or consideration by one person to another person and accepted by or on behalf of the latter. The gift under transfer of property and under Islamic law different.

Lease

Q. Define lease what are the right and liabilities of lessor. (1999)(2000)

Q. What is lease of immoveable property? describe the essentials of such leas.(1997)

1. Introduction:

A lease is a transfer of a right to enjoy the property of lessor made of a certain time under which the lease is put in possession of the property. the rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in lease.

2. Relevant provisions:

Sec 105, 107, 108 transfer of property act.

3. Lease how made:

A lease of immoveable property from year to year or for any term exceeding one year, or resering a year rent, can be made only by a registered instrument. all other lease of immoveable property may be made either by a registered instrument by oral agreement accompanied by delivery of possession.

4. Definition of lease:

A lease of immovable property is transfer of right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration for 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".

Transferor: The transferor is the lessor.

Transferee: The transferee is called lessee.

Price: The price is called premium

Rent: The money, share or other thing to be so rendered is called the rent.

5. Essentials element of lease:

Following are essentials elements of lease.

(i) Immoveable property:

Lease must relate to immoveable property.

(ii) Fixed duration of enjoyment:

Such enjoyment of right of property must be for fixed duration.

(iii) Transfer of right:

There must be transfer of such right of enjoyment.

(iv) Consideration: It must be for consideration.

(v) Acceptance:

The transfer must be accepted by the transferee.

6. Creation of lease:

Lease may be created by contract by either:

(i) Express (ii) Implied (iii) Statue.

7. Lease how made:

Lease of immovable property is made in the following ways.

(i) Through registered deed.

(ii) Through transfer of possession.

(iii) Through execution of instrument.

8. Determination of rights and liabilities of parties of lease:

The rights and liabilities of parties of lease determined by.

(i) Contract. (ii) Local usage.

9. Liabilties of lessor:

Following are the liabilities of lessor.

(i) Delivery of possession:

It is statutory obligation of the lessor to put the lessee in possession of the property leased out to him.

(ii) Disclosure of material defect:

The lessor is bound to disclose to the lessee any material defect in the property.

(iii) Protect the rights of heirs:

Lessor is bound to protect the rights of lessor's heirs in case of his death.

(iv) No interruption:

Lessor is bound not to incorrupt in the possession of property of the lessee.

(v) Repair the leased property:

Lessor should repair the leased property on the demand of lessee.

10. Right of lessor:

Following are the rights of lessor.

(i) Consideration:

He is entitled for the consideration.

(ii) Right to take consideration in time:

He has right to take consideration in time from the lessee.

11. Liabilities of lessee:

Labilities of lessee are as under.

(i) Accession:

If during the continuance of the lease any accession is made to the property, such accession subject to the law relating to allusion belongs to the owner of the joining land.

(ii) Destruction of property:

If by fire, tempest or flood or violence of any army or of more 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 lessee shall at the option of lessee be avoid.

(iii) Repairs on property:

If the lessor neglects to make within a reasonable time after notice, any repairs which he is bound to make, he make himself and deduct the expenses of repairs.

(iv) No Interruption: Lessor is bound not to incorrupt in the possession of property of the lessee.

(v) Payment of rent: The lessee must pay the rent of property to the lessor.

(vi) Reasonable care: A lessee is bound to take reasonable care of the property entrusted to him.

(vii) Notice to any defect:

If the lessee becomes aware of any proceedings to recover the property or any encroachment made upon or any interference with, the lessor's right concerning such property, he is bound to give, with reasonable notice thereof of the lessor.

(viii) Use for real purpose:

Lessor must not use property or permit another to use the property for a purpose other than that for which it was leased.

Unlawful purposes:

following may be unlawful purposes.

(i) Sell or pull down timber.

(ii) Damage to buildings.

(iii) Work mines or quarries.

(iv) Any other act which is destructive.

(ix) Permission of lessor:

Lessee must not without the lessor's consent erect on the property any permanent structure except for agricultural purposes.

(x) Delivery of possession of leased property:

On the determination of lease, the lessee is bound to put the lessor into possession of property.

12. Rights of lessee:

The rights of lessee are as under.

(i) Termination of lease in case of destruction of property:

Lessee has right to terminate lease in case of any destruction of property.

(ii) Make essential repair and deduct expenses:

Lessee should make essential repair and he has right to deduct expenses from the rent of property.

(iii) Payment made on behalf of lessor:

Lessee may make the payment which the lessor is bound to make and deduct same from the rent.

(iv) Take things attached to earth:

Lessee may even after the determination of the leaser remove at any time whist 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.

(v) Transfer of property:

The lesee may transfer absolutely or by way of mortgage or sub-lease whole or any part of his interest or party may transfer is again. the lesee shall not, by reason only if such transfer cease to be subject to any of the liabilities attaching to the lease.

13. Conclusion:

a lease is transfer of an interestof immoveable property. the rights and liabilities of both parties in lease are subject to the change by mutual agreement or by local usage.

Lis-Pendens

Q. Explain the doctrine "Lis Pendens" during suit as understood with reference to transfer of property. (2000)(2004)

1. Introduction:

A person can not be transferred during the pendency of a suit between the parties in the court. during the pendency of suit nothing new should be introduced.

2. Relevant provisions:

Sec. 52 transfer of property act.

3. Meaning of Lis-Pendens:

Lis means a cause to an action pendes means a pending suit.

4. Doctrine of Lis-Pendens:

According to Sec. 52 "during the pendency in any court having authority in Pakistan or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly or specifically in question, the property can not be transferred or otherwise dealt withby any party to the suit or proceeding so and to effect the right of any other party there to under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

Explanation:

For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction and to continue until the suit or proceeding has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being enforce.

5. Basis of doctrine of Lis-Pendens:

The doctrine of Lis-Pendens based on the maxim.

"Pendente lite ninic innovature."

It means during litigation nothing new should be introduced.

6. Purposes of Lis-Pendense:

(i) Prevention of multi suit:

The important purpose of Lis-Pendence is to prevent multiplicity of suit.

7. Essentials of doctrine of Lis-Pendenes:

Following are essentials of doctrine of Lis-Pendense.

(i) Transfer during the pendency of suit.

Transfer by any party to the litigation should have taken place during the pendency of suit.

(ii) Competent court of jurisdiction:

Suit must be pending in the court of competent jurisdiction.

(iii) Suit should be non-collsive:

Suit should be non-collusive.

(iv) Suit relating to immoveable property:

Suit must the relating to immoveable property.

(v) Right to immoveable property must be directory:

It is necessary that right to immoveable property must be directly and specifically in question.

8. Exceptions: Following exception when transfer can be made during the pendency.

(i) By operation of law.

9. Scope:

Doctrine of Lis Pendens bars the transfer or encumbering any right to immovable property during pendency of suit or proceeding before a court of law.

10. Conclusion:

It is a general rule known as Lis-Pendense in which transfer of immoveable property can not be made during the pendency of litigation in a court. this rule or doctrine protects the sanctity of the court.

Matters To Be Neglected By Court

Q. What matters be ignored by the reference court is determining the compensation of land acquired under the land acquisition act. (2000)(2001)(2004)(2005)

1. Introduction:

Land acquisition act empowers government to acquire land only for public purpose or for companies. compensation is determined and paid to those private persons or bodies whose land is so acquired. different matters are kept in view while determining the value of the property which is acquired.

2. Relevant provisions:

Sec. 24 of land acquisition act.

3. Meaning of compensation:

Osborn's concise law dictionary:

A payment to make amends for loss or injury to person or property or as recompense for some deprivation.

4. Matters to be neglected in determining compensation:

Following matters shall not be taken into consideration in determining the compensation.

(i) Degree of urgency:

The degree of urgency which has led to the acquisition.

(ii) Disclination to part with land:

Any disclination of the person interested to the part with the land acquired.

(iii) Damage caused by private person:

Any damage sustained by him which if caused by a private person would not render such person liable to suit.

(iv) Damage likely to be caused:

Any damage which is likely to cause to the land acquired after the date of the publication of the declaration under Sec. 6, by or in consequence of the use to which it will be put.

(v) Increase in value:

Any increase in the value of the land acquired likely to accrue from the use to which it will be put when acquired.

(vi) Increase in value of any other land:

Any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put or.

(vii) Improvement without sanction:

Any outlay improvement on or disposed of the land acquired, commenced, made or effected without the sanction of the collector after the date of the publication of the notification under Sec. 4 Sub Sec (1)

5.Modes of payment of compensation:

Amount of compensation may be made through the following modes.

(i) Direct payment. (ii) Order on a treasury.

(iii) Money order.  (iv) Cheque.

(v) Report in a treasury.

6. Conclusion:

while fixation of compensation court always keep in view such matter which are important for relief for the person whose land is acquired under land acquisition act but there are also some matters which are ignored by the court for determination of the compensation.

Mortgage

Q. What do you understand by the term mortgage. what are different kinds of mortgage. (1998)(2000)(2006)

Q. What is mortgage? explain various kinds of mortgage giving detail essential ingredients of each kinds. (2002)(2003)

1. Introduction:

A mortgage is security for the payment of debt. mortgage is created by act of the parties by a written document providing security for the performance of a duty or the payment of the debt.

2. Relevant provisions:

Sec. 58 transfer of property act.

3. Definition of mortgage:

"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.

Mortgagor: The transferor is called mortgagor.

Mortgagee: The transferee is called the mortgagee.

Mortgage money: The principal money and interest of which payment is secured for the time being is called mortgage money.

Mortgage deed: The instrument if any which the transfer is effected is called a mortgage deed.

4. Essentials of mortgage:

Following are essentials of mortgage.

(i) Transfer of an interest. (ii) Specific property.

(iii) Security for payment of loan.

5. Kinds of mortgage:

Following are various kinds of mortgage.

(i) Simple mortgage:

Simple mortgage is a transaction in which without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money and agree expressly or impliedly that in the event if this failing to pay according to the contract the mortgages shall have right to cause the mortgage property to be sold the proceeds of sale to be applied in payment of mortgage money.

Essentials:

(i) Property is mortgaged.

(ii) Possession is not delivered.

(iii)  A personal obligation to pay the debt.

(iv) Obligation may be express or implied.

(v) The transfer of a right to cause the mortgage property to be sold in default of the payment.

(ii) Mortgage by conditional sale

Where the mortgagor ostensible sells the mortgaged property on condition that on default of the payment of the mortgage money on a certain bate the sale shall become absolute or on condition on such payment being made the sale shall become void or on condition that on such payment being made the buyer shall transfer the property to the sellor the transation is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale.

Essentials:

(i) This mortgage is a form of sale.

(ii) The sale become absolute on the non-payment of mortgage money.

(iii) The sale may become void on the non-payment of mortgage money.

(iv) No delivery of possession is given.

(v) There is no personal liability on the part of the mortgagor to pay the debt.

(iv) The remedy of the mortgage is by foreclosure only.

(iii) Usufuctuary mortgage:

Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgage property to the mortgagee and authorize him to retain such possession until payment of the mortgage money, and to receive the rent and profits accruing from the property or any part of such rent and profit and to appropriate the same in lieu of interest, or in payment of the mortgage money, or party in lieu of interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufractuary mortgagee.

Essentials:

(i) No personal liability on the mortgagor.

(ii) Possession of property is delivered to the mortgagee.

(iii) No time period is fixed, to pay the mortgage money.

(iv) Mortgagee can not sale out the property.

(v) Mortgagee is entitled for rents and profits of the mortgage property.

(iv) English mortgage:

Where the mortgagor binds himself to repay the mortgage money on a certain date, and transferred the mortgage property, absolutely to the mortgagee, but subject to a proviso that he will re-transfer is to the money as agreed, the transaction is called an English mortgage.

Essentials:

(i) Mortgagor binds himself to re-pay the mortgagee on a certain date.

(ii) The property is absolutely transferred to the mortgagee.

(iii) Transfer of property should be subject to the proviso that the mortgagee will recover the property to the mortgagor on the payment.

(v) Mortgage by deposit of title deed:

Where the person specify in his behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to great a security thereon, the transaction is called a mortgage by deposit of title deed.

Essential:

(i) Document of titled deed is deposit as security.

(ii) There is a debt.

(iii) On the payment of mortgage money, the title deed is returned to the mortgagor.

(vi) Anomalous mortgage:

A mortgage which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgages and English mortgage by deposit of title deed is called anomalous mortgage.

6. Remedies for mortgagor:

Mortgagor has following remedies.

(i) Suit for sale.

(ii) Suit for money.

7. How conditional mortgage is determined:

The court generally apply certain tests to determine whether the transaction was sale with a condition or repurchase or a mortgage by way of conditional sale.

(i) The existence of debt indicate a mortgage.

(ii) The long period of repayment indicate a mortgage.

(iii) A stipulation for interest on repayment indicated mortgage.

8. Conclusion:

A mortgage is the transfer of an interest in specific immovable property for securing the payment of money advanced or to be advanced by law of money. The different kinds are simple, conditional, usufructory, English by deposit of title deed and anomalous mortgage.

Ostensible Owner

Q. Who is ostensible owner? Discuss in detail the law regarding transfer of property by ostensible owner. (2001) (2003)(2007)

1. Introduction:

If  transfer of property is made by ostensible owner, such transfer is not void. ostensible owner is not real owner, but the real owner of the property permit him to hold himself out as a real owner. reasonable care must be taken by ostensible owner.

2. Relevant provisions:

 Sec. 41. transfer of property act.

3. Meaning of ostensible owner:

According to black law dictionary:

:Ostensible owner: is the "apparent owner".

4. General rule:

General rule regarding the transfer of property is that on one can transfer a better title than what he himself possess.

5. Exception to general pule:

According to sec. 41

"Where with the consent, express or implied of the person interested in immoveable property a person is the ostensible owner of such property and transfer the same for the consideration the transfer shall not be void on the ground that the transferor was not authorized to make it.  provided that  the transferee, after taking reasonable care to  ascertain that the transferor had power to make the transfer has acted in good faith."

6. Essential conditions for the applicability:

(i) Ostensible owner: The transfer must be made by ostensible owner.

(ii) Immoveable property: The property must be immoveable.

(iii) Consent: The real owner should have given consent to the apparent authority.

Form of consent

Following are the two forms of consent.

(i) Express consent (ii) Implied consent

(iv) Transfer for consideration:

The transfer by ostensible owner must be for some value or consideration.

(v) Cannot be avoided by real owner:

Once the transfer is made by the real owner it can not be avoided by the real owner.

(vi) Reasonable care must have been taken by transferee:

The transferee must have taken reasonable care to ascertain the true authority of the transferor.

(vii) Good faith:

The transferee must have acted in god faith.

7.Burden of Proof:

The burden of proof in the first instance is on the transferee to show that he acted in good faith and has taken reasonable care. secondly the burden of proof is on the real owner.

8. Rule of evidence

Sec. 41 of T.PA. provides a rule of evidence against the real owner that once the consent is given by his, he will not be allowed to restrain the transfer.

9. Application of law of estoppels:

Sec. 41 based upon equitable doctrine of estoppel operating between true owner and the transferee. as a  matter of fact sec. 41 is a statutory application of the law of estoppel.

10. Basis:

Sec 41 based upon the equitable doctrine of estoppels.

11. Conclusion:

An ostensible owner can transfer the property if conditions is sec. 41 are fulfilled by him. it is on natural justice and equity. such doctrine is applicable to voluntary transfers. the transfer must be consideration and the transferee must take reasonable care to ascertain that the transferor has power to make the transfer and must act in good faith.

Part performance

Q. Discuss the principle laid in Sec. 53 a for transfer of property act. (2001)(2004)

1. Introduction:

Doctrine of part performance is regarded a exception to the general rule as laid down in the registration act that a document relating to an immoveable property of value of Rs. 100 or upwards has to be compulsorily registered. it is founded on the English rules of equity.

2. Relevant provisions:

Sec. 53A transfer of property act.

3. Part performance:

Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession, in part performance of the contract and transferee has act in furtherance of the contract and transferee has performed or is willing to perform his part of the contract then not withstanding that contract, though required to be registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for time being enforce, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of property of which the transferee has taken or continue in possession other than a right expressly provided by the terms of the contract.provided that noting inn this section shall effect the right of a transferee for consideration who has no notice of the contract or of part performance thereof.

4. Object

PLD 1961 Kar. 53

The main object of Sec,. 53A is to protect ignorant transferee who have taken possession or spend money in improvement relying on document which are ineffective as transfers or on contracts which can not be proved for want of registration.

5. Essentials:

Following are essentials of part performance.

(i) Contract for transfer of immoveable property:

There must be contract for transfer of immoveable property.

(ii) Valid contract:

The contract must be valid.

(iii) Consideration:

There must be consideration for the contract to transfer the immoveable property.

(iv) Writing and signature:

The contract must be in the writing and signed by the contractor himself or signed on his behalf.

(v) Certainty of terms:

The contract or instrument of transfer must be such as to enable the court to ascertain there from with reasonable certainty the term of the contemplated transfer.

(vi) Possession:

The transferee must have been put into possession of the property in part performance of the contract and if he was in possession of property from before he must have continued in possession in part performance of the contract and must have been done some act in furtherance of the contract.

(vii) Willingness of transferee to perform his part of contract:

The transferee must have willingness to perform his part of contract.

6. Conclusion:

To conclude , part performance as laid in Sec. 53-A of transfer of property act is exception to the general rule embodied in the registration act. The effect of Sec. 53-A is to relax the strict provisions of the transfer of property act as well as registration act.

Procedure In Case Of Urgency

Q. Discuss the procedure acquisition of land in case of urgency. (2005)

1. Introduction:

The government is empowered to acquired land for public purpose and company government is to decide about the public purpose and company government is to decide about the public purpose. a collector can act for public purpose.

2. Relevant provisions:

Sec. 17 of land acquisition act.

3. Meaning of urgency:

Urgency means something which lead compulsory and immediate attention.

4. What constitution urgency:

The section 17 relates to the concept of "eminent domain" which means the power of the government to take away private property for public purpose. it would depend on the circumstances that what would constitute an urgency. the collector is the sole judge to determine whether there is urgency or not.

5. Definition of collector:

The expression collector means the collector of a district, and include a district an any specially officer appointed by the provincial government to perform the functions of a collector under this act.

6. Circumstances for acquisition of land under land acquisition act:

Following are circumstances when land can be acquired.

(i) Acquisition of land in ordinary circumstances.

(ii) Acquisition of land in urgency.

(i) Acquisition of land in ordinary circumstances:

A collector can acquire land in ordinary circumstance under land acquisition act.

(ii) Acquistion of land in urgency:

 A collector can acquire the possession of land in cases of emergency.

7. Object:

Case law

PLD 1990 LAH. 274

That object of exacting sec. 17 was to allow the authority to proceed in the manner without waiting for other formalities to be completed.

8. Determination of urgency:

1993 MLD 1887:

The existence of emergency is a matter of solely for the determination of the government and is not a subject of judicial review.

9. Procedure in urgency:

Collector on the direction of the provincial government on the expiration of fifteen days form the publication of notice can take possession of land.

Conditions:

(i) Declaration must have been published.

(ii) Land must have been measured.

(iii) Land must have been marked out.

(iv) The must be required for permanent acquisition.

(v) Order of government should have been received.

(vi) Compensation has been assessed.

(vii) Compensation has been offered to person whose land is to required.

(viii) Land must be waste or arable.

(ix) 15 days have been expired after the publication of notice.

(x) Public purpose.

10. Application of sec .17

17 (i) is applicable to arable or wast land as well as all other land.

11. Effect of acquisition:

Such land shall there upon a vest absolutely in the government form all encumbrances.

12. Conclusion:

provincial govt. is empowered to acquire land in case of emergency. it can direct collector to take possession of the land or any building. the competent authority in case of urgency do not follow the formalities while taking the possession of land.

Procedure Of Acquisition Of Land By Company

Q. What is procedure adopted for acquisition of land for a company? (2001)(2002)(2003)(2004)(2006)(2007)

1. Introduction:

Company is an association of persons united for a common purpose. under land acquisition act company is entitled for the acquisition of for public purpose. a company can not acquire a land if there is no involvement of public purpose.

2. Relevant provisions:

Sec. 38, 39, 40, 41, 42, 43A land acquisition act.

3. Definition of company:

Company means a company registered under the Indian companies act 1882 (VI of 1982), or under the (English) companies act 1862 to 1890, or incorporated Pakistan law or by royal charter or letter patent and include a society registered under kingdom or by Pakistan law or by royal charter of latter patent and include a society registered under the society registration act 1860 (XXI of 1860) and a registered society within the meaning of the co-operative society act, 1912 (II of 1912).

4. Definition of public purpose:

The expression public purpose include the provision of village sites in districts in which the provincial government shall have declared by notification in the official gazette that it is customary for the government to make such provisions.

What are public purposes:

(i) Public liability. (ii) Educational institution.

(iii) Industrial area. (iv) Village market.

(v)Residential house of industrial labour.

(vi) Settlement of immigrants.

(vii) Housing scheme.

(viii) Construction of God owns for storage of food.

(ix) Construction of staff quarters.

(x) Re-habilitation of refugees.

(xi) Scheme for land reforms.

(xii) Roads and railway tracks.

(xiii) Accommodation for government servants.

5. Basis:

"Salus populi supreme lex"

It means the interests of public are supreme and private interest are subordinate to the interest of state.

6. Procedure of acquisition of land for companies:

(i) Company to apply to the collector:

Company desiring to acquiring land shall apply to the collector for acquiring land.

(ii) Issuance of notification:

Notification shall be issued in which name of the revenue estate, detail of dimension and boundaries of squares or restate, detail of dimension and boundaries of squares or rectangles as well as approximate area to be acquired shall be mentioned.

(iii) Company may be authorized to enter and survey:

Any officer of the company may be authorized to enter and survey the land so acquired.

(iv) Previous consent of provincial Govt. and execution agreement necessary:

On the report of the collector or after conducting inquiry consent shall be given by provincial Govt.

7. Execution of agreement:

If provincial govt. is satisfied, it shall execute an agreement with the company.

Particulars of agreement:

(i) The payment to the provincial govt, of the cost of the acquisition.

(ii) The transfer of such payment of the land to the company.

(iii) The term on which land shall be held by the company.

(iv) If the land is acquired for houses or provision of amentias connected therewith.

(a) The time which construction is to be made.

(b) Conditions under which construction is to be made.

(c) Manners in which dwelling houses.

(v) If any land is acquired for construction of public interest.

(a) Time of completion.

(b) Conditions of construction.

(c) Time within which public shall use the work.

(d) Terms on which the public shall be entitled to use the work.

8. Restriction on transfer:

No company which has acquired land shall be entitled to transfer the said land or any part there of by sale, mortgage, gift, lease or otherwise.

Exception:

Previous sanction of provincial govt, company can transfer the land.

9. Conclusion:

To conclude I can say that under land acquisition act company is entitled to acquire land for public purposes. the provincial Govt. is empowered to decide about the public purpose. the exercise of the power of acquisition has been limited to purposes.

Refusal To Registration Of A Document

Q. Can a sub-registrar, without assigning any reason, refuse register a document?what is the remedy against his order. (2001)

1. Introduction:

Sub-registrar can refuse to register a document in account of various grounds. under the registration act he can also refuse to register a document without assigning any reason. a person whose registration has been refused can avail himself different remedies available under the registration act.

2. Relevant provisions:

Sec. 71 registration act.

3. Reasons for refusal to register to be recorded:

Every sub-registrar refusing to register a document except on the ground that the property to which it relates is not situated within his sub-district, shall make an order of refusal and record his reason for such order in his book and endorse the word "Registration Refuused" on the document and on application may by any person executing or claiming under the document shall without payment and necessary delay give him a copy of the reasons so recorded. No registering officer shall accept for registration a document so endorsed unless and until, under the provisions here in after contained the document is directed to be registered.

4. Remedy against the order of sub-registrar:

If sub-registrar refused to register a document on the ground that the property is not situated within his area, there is no remedy against the order of the sub-registrar.

5. Appointment of registrars and sub-registrar:

The provincial government may appoint such persons, whether public officers or not as it thinks property, to be registrars of the several districts and to be sub-registrars of the several sub-district formed as aforesaid respectively.

6. Review:

A registrar has no power under this act to review his orders.

7. Remedy against registrar's order under specific relief:

Remedy against registrar under specific relief act can be availed by aggrieved person.

8. Conclusion:

Sub-registrar is registration officers. he registers document in his specified area. under the registration act he can refuse to register a document without assigning any reason if the property is not within his area. The registration act does not provide any remedy against such order of sub-registrar.

Remedy Available To Aggrieved Person

Q. What is remedy available to a person aggrived of the award. (2000)

Q. Describe the procedure to be adopted in case the award given by the collector is not acceptable by the parties. (2003)

1. Introduction:

If the award which is given by the collector is not acceptable by parties or any person, remedy is provided under land acquisition act against the award of the collector.

2. Relevant provisions:

Sec 18, 20, 21 land acquisition act.

3. Meaning of award:

Oxford dictionary Award is judicial decision.

4. Definition of award:

1988 CLC 715

Word award though not defined in land acquisition act, yet is used, with reference to compensation for land acquired, both award made by collector and passed by acquisition judge or reference by collector on such award are to be deemed award.

5. Person who can apply for reference:

Person interested can apply for reference.

"Person interested" includes all persons claiming an interest in compensation to the made on account of the acquisition of land under this act, and a person shall be deemed to interest in land if he is interested in an easement affecting the land.

6. When right of references is lost:

If person interested has received compensation the right of reference is lost.

7. Essential conditions for making reference:

Following are essentials conditions for making reference.

(i) Written application shall be made to the collector.

(ii) Application shall be made only by person interested.

(iii) The person who has not accepted the award can make application.

(iv) Grounds for objection shall be mentioned in the application.

(v) Application for reference should be made within prescribed time.

(vi) The application shall be filed within six weeks from the date of the award of collector.

8. Grounds of application:

Following are grounds of application.

(i) Objections as the measurement of the land.

(ii)Objections as to the amount of compensation.

(iii) Objections as to the person to whom it is payable.

(iv) Objections as to the apportionment of the compensation among the person interested.

9. Procedure:

(i) Service of notice:

Notice shall be served upon the following persons.

(i) Person interested. (ii) Collector. (iii) Applicant.

(ii) Restriction of scope of the proceedings:

The scope of the inquiry in every such proceeding shall be restricted to a consideration of interests of the persons affected by the objection.

(iii) Proceeding and order:

Every such proceeding shall be take place in the open court. the court shall make order after considering the objections.

10. Limitation for application of reference:

(a) If the person was present before the collector at time of making award the limitation will 6 weeks.

(b) Otherwise i. e, if he was not present or represented within 6 weeks of receipts of notice u/s 12(2). if the not has not been received within 6 months of making of award.

11. Appeal:

Appeal can be filed in the H. C against the order of the court.

12. Conclusion:

To conclude I can say that reference can made to the court by person interested through collector. a person not aggrieved of award by collector is not entitled to seek remedy.

Revocation Of Succession Certificate

Q. How a succession certificate can be revoked.

Q. Explain "succession certificate" when be revoked? is there any right of appeal against such revocation. (2002)(2004)

1. Introduction:

When a person dies, the property which he had left is transferred, to others either according to his will or according to law of succession. the succession certificate is a formal document which attests the qualification of a person as entitled to collect some debt or securities by entitled person.

2. Relevant provisions: Sec 370-390 succession act.

3. Definition of succession certificate:

Succession certificate is a document certifying the entitlement of a particular person or persons to succession of a deceased person.

4. Object of succession certificate:

The object of succession certificate is the collection of debts of the deceased.

5. Jurisdiction of the court to grant succession certificate:

The district judge within whose jurisdiction the deceased ordinary resided at the time of the death, or if at the time he had no fixed place of residence, the district judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate.

6. Application for succession certificate:

Application shall be made to the district judge for the certificate.

7. Revocation of success certificate:

Meaning:

Revocation means cancellation.

Who can revoke:

Only the competent court of jurisdiction can revoke succession certificate.

8. Ground of revocation of succession certificate:

Ground of revocation of succession certificate are as under.

(i) Defective proceeding:

The succession certificate can be revoked on the ground of that proceeding was defective in the substance.

(ii) Element of fraud:

That succession certificate was obtained fraudulently by the making of a false succession.

(iii) Concealment of fact:

That succession certificate was obtained by concealment from the court of something material to the case.

(iv) Untrue allegation:

That the certificate was obtained by means of an untrue allegation of the fact essential in point of law to justify the grant thereof though such allegation was made in ignorance or inadvertently.

(v) Inoperative certificate:

That the certificate has become useless and inoperative through circumstances.

(vi) Other proceedings:

That a decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.

9. Who can apply for revocation of certificate:

The application for the revocation may be made by person having an interest in the succession certification.

10. Limitation period for revocation:

The revocation can be made at any time by the competent court of the jurisdiction.

11. Appeal:

An appeal shall lie against the order of the district judge to the high court.

12. Conclusion:

On different grounds under the succession act, succession certificate can apply for the revocation. The application for revocation should be made to the court which granted the certificate.

Right And Duties Of Parties Of Lease

Q. What is lease? discuss the rights and liabilities of lessor and lease. (2002)

1. Introduction:

A lease is a transfer of a right to enjoy the property of lessor is put in possession of the property. the rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in lease.

2. Relevant provisions:

Sec, 105, 107, 108 transfer of property act.

3. Determination of rights and liabilities of parties of lease:

The rights and liabilities of parties of lease determined by.

(i) Contract.  (ii) Local usage.

4. Duties of leassor:

(i) Duty to disclose material defect :

It is the duty of the lessor to leasee to disclose material defect which can cause any injury to any person or property.

(ii) Duty to give possession:

The lessor is bound to give possession on the lessee is request otherwise he cannot enforce the obligation of lease.

(iii) Duty to secure possession:

If lease is performing his part of contract than it is duty of lessor to secure possession so that leasee can take the possession during any time of lease.

(iv) Duty to pay repair money:

It is the duty of the lessor to pay the money to lesee which was spent by lesee on the property.

(v) Duty to give other expenses:

If lesee has spent any other money for the maintenance of lease property then lessor is dduty bound to give maintenance to the lesee.

(vi) Duty not to interrupt the enjoyment:

It is the duty of lessor that to interrupt the enjoyment of property.

5. Rights of lessor:

Following are the rights of lessor.

(i) Right of information of incerasing rent:

Lessor has right of information of any material change which could enhance the value of property of lessor.

(ii) Right to receive rent:

Lesee is bound to give rent or premium at property time and place.

(iii) Right of restoration of property:

 It is the duty of lesee to restore property in the same position during lease and on the termination return it to lessor in the same form as was at the time of possession.

(iv) Right of information of assailing of title by stranger:

It is right of lessor to have information of assailing of title by stranger.

(v) Right to re-enter:

Lessor can re-enter into his property.

(vi) Right to eject tresspasser:

It is the right of lessor to eject the trepasser.

(vii) Right to terminate the lease:

It is the right of lessor to terminate the lease for this purpose he can issue notice to the lessee.

6. Duties of lessee:

Following are the duties of lessee.

(i) Duty to disclose the martial fact:

It is the duty of lesee to disclose material fact to lessor which could enhance the value of lease property.

(ii) Duty to pay rent: It is the duty of lesee to pay rent at proper time and place.

(iii) Duty to inform about assailing of title:

It is the duty of lessee that if a stranger asserts the title of lessor's property to inform the lessor.

(iv) Duty not to commit waste:

Lesee should not commit any waste in regard of lease property.

(v) Duty not to erect permanent structure:

It is the duty of lessor not to erect permanent structure except for the purpose of lease.

(vi) Duty to protect the property:

It is duty of lesee to protect the lease property and sue the property as man of ordinary prudence.

(vii) Duty to use lease property for same purpose:

It is duty of lesee to use lease property for the purpose for which it is lease out.

7. Rights of lesee:

Following are the rights of lesee.

(i) Right of accession:

He has right of accession whether natural or other. this right can be exercise during the period of lease.

(ii) Right to avoid lease:

Where the lease property is unfit for lease the lesee can avoid the lease.

(iii) Right to charge for repair:

If lesee repairs the property he has a right to charge for the repairs.

(iv) Right to change for other payment:

Lesee has a right if he made any reasonable payment in respect of lease property he is entitled for the payment.

(v) Right to transfer interest:

The lesee may transfer absolutely or by way of mortgage or sublease the whole or any part of his interest in the property.

(vi) Right to take crops:

If in lease of uncertain duration the lesee or his legal heirs are entitled to all crops.

(vii) Right to take possession:

It is the right if lease is made, to take possession of such property.

(viii) Right to remove:

Lesee has right to remove whilst he is in possession of property leased out, the things which he had attached to earth.

(ix) Right to terminate the lease:

Lesee has right to terminate the contract of lease. if the subject matter has been destroyed.

8. Conclusion:

There is transfer of right of enjoyment in lease. The contract of lease creates rights and liabilities on both parties i. e the lessor and lesee.

Right and Liabilities Of Mortgageor

Q. Discuss the right and liabilities of mortgagor. (2004)

1. Introduction:

A mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt. the rights and liabilities of mortgagor and mortgagee are mentioned in the transfer of property act.

2. Relevant provisions:

Sec. 60 to 66 transfer of property act.

3. Definition of mortgage:

"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.

Mortgagor: The transferor is called mortgagor.

Mortgagee: The transferee is called the mortgagee.

Mortgage money: The principal money and interest of which payment is secured for the time being is called mortgage money.

Mortgage deed: The instrument if any which the transfer is effected is called a mortgage deed.

4. Kinds of right and liabilities:

There are following two types of rights and liabilities of mortgagor as well as mortgagee.

(i) Statutory rights and liabilities:

The statutory rights and liabilities are provided in relevant sections of transfer of property act.

(ii) Contractual rights and liabilities:

Contractual rights and liabilities which the mortgagor and mortgagee stipulate in the contract.

5. Right of mortgagor:

Following are rights of mortgagor.

(i) Right to redeem:

Mortgagor has right to redeem the mortgage property.

(ii) Right of title deed:

When the whole debt is created the mortgagor has right to demand back all title deeds from mortgagee on the redemption of the property.

(iii) Right to demand delivery of possession:

Or redemption the mortgagor may demand, the mortgagee, where he is in possession of the mortgage property to deliver possession thereof to the mortgagor.

(iv) Right to compensation:

Mortgagor has right to compensation.

(v) Right that acknowledgement of extinguishments of rights be registered by the mortgagee:

The mortgagor, on payment or tendor of the mortgage, has right to require the mortgagee, at the cost of the mortgagor, to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.

(vi) Right to re-transfer the property:

Mortgagor has right to re-transfer the mortgage property.

(vii) Right of inspection and production of document:

A mortgager as long as his right to redemption subsists, is entitled at his own cost to inspect or make copies of document of title relating to the mortgage property.

(viii) Right to redeem separately simultaneously:

A mortgager who has executed two or more mortgages in favour of the same mortgage shall in the absence of a contract to contrary when the principal money of any two more of the mortgagee has become due to entitled to redeem any one such mortgage separately or any two or more of such mortgages together.

(ix) Right of usufructuary to rceover possession:

Mortgager has right recover the property in case of usufructuary mortgage together with the mortgaged deed and all documents relating to the mortgage property which are in possession or power of the mortgagee.

(x) Right of accession to the mortgage property:

Where the mortgage property in possession of the mortgagee has during the continuance of the mortgage, received any accession, the mortgagor upon redemption shall be entitled to such accession against the mortgagee.

(xi) Right of improvement:

Where mortgage property in possession of the mortgagee has during the continaance of mortgage been improved the mortgagor upon redemption, shall be entitled to the improvement but will be liable to pay the costs thereof.

6. Liabilities of the mortgagor:

Following are the liabilities of the mortgagor.

(i) Liability to transfer valid interest:

The mortgagor is liable to transfer valid interest to the mortgagee in respect of the mortgage property.

(ii) Liability to defend title:

The mortgagor is under liability to defend his own title if he is in possession of mortgage property and if mortgagee is in possession he must enable him to defend his property.

(iii) Liability to pay public charges:

It is liability of the mortgagor to pay the public charges so long as the mortgagee is not in possession.

(iv) Liability to pay rents:

Where the mortgage property is a lease it is liability of mortgagor to pay the rent.

(v) Liability to pay interest and other encumbrances:

It is liability to pay interest on the prior mortgage and discharge of such encumbrances at the proper time where the mortgagee is a subsequent of second mortgage.

7. Conclusion:

The transferor is called the mortgagor. he has rights and under some liabilities according to the transfer of property act.

Sale

Q. Define sale. how is it made? discuss in detail giving the rights and liabilities of the vendor and the vendee. (1998)

Q. Discuss the rights and liabilities of a sellor. (1999) (2000)

1. Introduction:

Sale is transferring of property by a sellor too the buyer at a price. there is absolute transfer of all rights in the property sold. the seller must be competent to transfer the property.

2. Relevant provisions:

Sec. 55 transfer of property act.

3. Definition of sale:

"Sale is a transfer of ownership is exchange for a price paid or promised or part paid and part promised."

4. Sale how made:

Modes

In case of Tangible property

A sale of tangible immovable property such as house building can be made.

(a) By a registered instrument if its value is Rs. 100/= or upwards.

(b) By the delivery of the property if its value is less than 100/=

In case of intangible property

A sale of intangible immoveable property such as mortgage deed or any other right can be made by a registered instrument.

5. Contract of sale:

A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. it does not itself create any interest in our charge on such property.

6. Essentials of sale:

I. Parties: The sellor and buyer are parties of sale.

II. Subject matter: The subject matter of a sale is immovable property.

III. Consideration: Price is the consideration of the sale which is settled between the parties.

IV. Transfer: The sale does not become complete unless the sellor actually does an act having an effect in law transferring the rights of sellor in the property to the buyer.

7. Rights of a sellor:

(i) Rent and profit:

The sellor is entitled to the rents and profits of the property till the ownership there passes to the buyer.

(ii) Charge, on property:

Where the ownership of the property has passed to the buyer before the payment of the whole of the purchase money, to a charge upon the prpoerty in the hands of the buyer any transferee without consideration or any transferee with notice of non-payment for the amount of purchase many or any part of remaining unpaid, and for interest on such amount or part unpaid and for interest on such amount or part from the date on which possession has been delivered.

8. Liabilities of sellor:

(i) Disclose any defect in property:

It is liability of sellor to disclose any material defect in the property or in the sellor's title thereto of which the sellor is and the buyer is not aware and which the buyer could not ordinary case discover.

(ii) Production of document of title:

To produce the buyer on his request for examination all documents of title relating to the property which are in sellor's possession or power.

(iii) Answer the question:

To answer to the best of his information all relevant questions put to him by the buyer in respect to the propertyor the title thereto.

(iv) Registration of sale deed:

On payment or tendor of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place.

(v) Care of property and documents:

Between the date of contract of sale and the delivery of the property, to take as much care of the property and all documents of title thereto which are in his possession as an owner of ordinary prudence would take of such property and documents.

(vi) Delivery of possession:

To give on being required the buyer or such person as he directs, such possession of property as its nature admits.

(vii) Payment of all charge:

To pay all public charges and rent accrued due in respect of the property up to the date of sale, the interest on all incumbrances on such property due on such date and expect where the property is sold subject incumbrances, to discharge all incumbrances on the property then existing.

(viii) Delivery of document:

Where the whole of the purchase money has been paid to the sellor, he is also bound to deliver to the buyer all documents of title relating to the property which are in sellor possession or power.

9. Rights to buyer:

(i) Right of improvement:

Where the ownership of the property has passes to the benefit of any improvement in or increase in value of the property and to the rent and profits thereof.

(ii) Benefit of sellor:

Where the ownership of the property has passed to the buyer before payment of the whole of the purchase money to be a charge upon the property in the hands of the buyer and transferee without consideration or any transferee with notice of non-payment for amount of the purchase money or any part there of remaining unpaid and for interest on such amount or part from the date on which possession has been delivered.

10. Liabilities of buyer:

(i) Disclose any fact about the property:

To disclose to the sellor any fact as to the nature or extent of the sellor's interest in the property of which the buyer is aware but of which he has reason to belive that the sellor is not aware, and which materially increases the value of such interest.

(ii) Payment of price:

To pay or tendor, at the time and place of completing the sale, the purchase money to the sellor or such person as he directs.

(iii) Bear loss:

Where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the sellor.

(iv) Payment of public charges:

Where the ownership of the property has passed to the buyer, as between himself and the sellor, to pay all public charges and rent which may become payable in respect of the property, the principal money due on any incumbrances subject to which the property is sold and the interest thereon after wards accruing due.

11. Conclusion:

Sale is transfer of property or ownership in exchange for a price paid or promised to part paid or part promised. the essentials of sale, are parties subject matter transfer and price or consideration. the sellor and buyer shall be subject to the rights and liable enumerated in transfer of property act.

Succession Certificate

Q. Write a detail the procedure for obtaining a succession certificate.(2000)(2001)(2003)(2004)

Q. What do you mean by succession certificate discuss the procedure to grant a succession certificate by a court. (2000)(2001)

1. Introduction:

When a person dies, the property which he had left is transferred, to others either according to his will or according to law of succession. the succession certificate is a formal document which attests the qualification of a person as entitled to collect some debt or securities by entitled person.

2. Relevant provisions:

Sec 370-390 succession act.

3. Definition of succession certificate:

Succession certificate is a document certifying the entitlement of a particular person or persons to succession of a deceased person.

4. Object of succession certificate:

The object of succession certificate is the collection of debts of the deceased.

Case law

1995 CLC 221.

The object of succession certificate is the collection of debts by person who has his prime facie title to succession right of succession certificate to be decided in summary manner.

5. Jurisdiction of the court to grant succession certificate:

The district judge within whose jurisdiction the deceased ordinary resided at the time of the death, or if at the time he had no fixed place of residence, the district judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate.

6. Application for succession certificate:

Application shall be made to the district judge for the certificate.

7. Pre-requisites of application:

(i) Petition in written from.

(ii) Signed and verified by the application or on his behalf in the manner prescribed by the civil procedure code.

(iii) Time of death of deceased.

(iv) Ordinary residence of deceased.

(v) The property of the deceased with in whose limit.

(vi) Name of family members on near relatives of deceased.

(vii) The right in which the petitioner claims.

(viii) The securities and debt in respect of which the certificate is applied for.

8. In case more than one claimant:

In case where more than one person applies for certificate a joint certificate may be granted.

9. Who can apply for succession certificate:

Following persons can apply for the succession certificate.

(i)  Any sound mind person.

(ii) Person who has attained the age of majority.

(iii) Any person who has interest in the estate of deceased.

(iv) Secretary of state.

(v) Any person who has beneficial interest in debt or security of the deceased person.

10. Procedure on application:

Procedure on application shall be as under.

(i) Issuance of notice:

Judge shall cause notice on receiving application for the succession certificate.

(ii) Person on whom the notice to be served:

He shall cause the notice on any person, on whom, in opinion of judge such notice should be given.

(iii) Affixation of notice:

The judge shall also order of the affixation of the notice as well as publication of such notice in the newspaper.

(iv) Decision on fixed day:

The judge shall make decision on the fixed day.

(v) Issuance of certificate:

The court on satisfaction that applicant is entitled for the succession certificate, will issue the same.

11. Contents of the succession certificate:

When succession certificate has been granted the court must specify there in the debts and securities grant of such certificate. the court may empower the person to whom the certificate is granted.

(i) To receive interest or dividend on or.

(ii) To negotiate or transfer or.

(iii) Both to receive interest or dividends on and to negotiate or transfer the securities or any of them.

12. Nature of proceeding before the court:

Under the succession act only summary proceeding are provided for granting the succession certificate.

13. Application of the certificate:

A succession shall have effect throughout Pakistan.

14. Effect of certificate:

Succession certificate shall be conclusive as against the person owing such debts and securities.

15. Conclusion:

the instrument through which the disposition of moveable property of the deceased is called succession certificate. it is granted by the competent court of the jurisdiction. its object is to facilitate the collection of debts and securities.

Will

Q. What is the will, who can make it and explain in whose faovour a will can be effectively made and to what extent. (2003)(2006)

1. Introduction:

Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect after his death.

2. Relevant provisions:

Sec. 2h, 59, 62 succession act.

3. Meaning of will: A will means disposition of property which takes effect after the death of testator.

4. Definition of will  According to sec. 2(h):

"Will means the legal declaration of the intention of a teststor with respect to his property which he desires to be carried into effer his death."

5. Parties of will:

 Testator: The person making will is called testator.

 Legatee:  In whose favour the will is made is called legatee.

 Legacy: The proper bequested.

 Executor. The person appointed to carry the will into execution is called executor.

6. Persons capable making will:

Following person are capable of making will:

(i) A married woman. (ii) Deaf, dumb and blind.

(iii) Ordinary insance person.

7. Form of will:

A person may make will either orally or in writing and no formalities are required.

8. Essentials of will:

Following are essentials of will.

(i) There must be declaration.

(ii) The property must be capable of being transferred.

(iii) The property must be in existence at the time of the death of testator.

(iv) Testator must be the owner of the property.

9. Kinds of will:

 Following are kinds of will:

(i) Joint will.  (ii) Mutual will.  (iii) Sham will.

(iv) Nuncupative will  (v) Duplicate will.

10. Types of will:

Following are two types of will:

(i) Conditional.  (ii) Unconditional.

11. Revocation of will: A will can be revoked.

Modes of revocation