Object 1

# Kind of immovable properties that are not transferable

The main aim of this article is to provide the immovable properties which are not transferable and
also to differentiate between properties to have a clear understanding of the concept. Section 6 of
the Act states about the properties which are immovable and not transferable also. The detailed
analysis of the exceptions are summarised below:

Section 6(a) : Spes Succession

This section states that:

•The chance of heir-apparent succeeding to an estate cannot be transferred.

•The chance of a relation obtaining a legacy on the death of kinsman cannot be
transferred.
•Any mere possibility of a like nature cannot be transferred.

Example 1

A is the owner of a property, if he dies his son B will get the property as he is the legal heir and here
it can be said that B is the heir-apparent. But this same property cannot be transferred to B during
the lifetime of A.

Example 2

Son B dies during the lifetime of his father A, if during the lifetime of his father, he transfers the
property without his father’s consent then the transfer would be void ab initioand is prohibited by
law.

Section 6(b) : Right of re-entry

This clause states that the right to resume the possession of the land which could be given to some
other person for a certain period. For example, lease cases. As per this, if there is a mere right of re-
right for breach of a condition, it later cannot be transferred to anyone except the owner of the
property who is thereby affected.

Example

A grants a lease of land to B for 3 years. At the expiry of 3 years, if he transfers the right of re-right
to C then this transfer shall be invalid.

Section 6(c) : Easement

An easement means a right that the owner or the occupier of certain land has in his possession for
the beneficial enjoyment of the said land. It can be said that the right to use or restrict the use of the
property of some other person. An easement cannot be transferred except the dominant heritage.
Example

M, the owner of the house has the right of way over their adjoining land with N. Hence, M cannot
transfer his right without transferring the house.

•In the case of Sital v. Delanney, the court held that an easement cannot be transferred
unless the dominant heritage right is attached to it.

Section 6(d) : Restricted interest

A person cannot transfer anything that is interest restricted in the enjoyment to him. Restricted
rights are personal and cannot be transferred and if such transfer happens then it would be void. The
following types of interest are not considered transferable, such are:

•Service tenure;
•A right of pre-emption;
•Emoluments;
•Religious office.

Example

The right of the priest to receive the offering. This right is his restricted interest and he cannot
transfer this to another person who may be a doctor by profession.

Section 6(dd) : Right to future maintenance

This clause states that the right to future maintenance whatsoever cannot be transferred in any
manner. This is because the right is solely a personal benefit given to a person and so he cannot
transfer his benefit to someone else.

Example

A woman who receives maintenance from her husband under a decree or award or order.

•In the case of Dhupnath Upadhya v. Ramacharit, it was held that where the property is
given as maintenance, then the person cannot transfer the property during her lifetime. A
right of maintenance is a personal right and cannot be taken away.

Section 6(e) : Right to sue

According to this clause, a mere right to sue cannot be transferred. A right to sue cannot be
transferred as the transferee acquires no interest in the subject matter of the suit as much as the
owner of the property would.

Example
X published defamatory statements against Y and Y filed a suit against X. But Y cannot transfer his
right to Z to recover damages for him. If Y transfers his right to Z then this transfer will be held
void.

Section 6(f) : Public Office

A public office cannot be transferred and so the salary of the public officer, whether before or after
it becomes payable. A public officer is a person who is appointed to discharge his duty towards the
public and for doing such an Act he is paid in the form of salary. This salary is a personal benefit to
him that cannot be transferred.

Section 6(g) : Pensions

Generally, pensions are the monetary value like a salary, given to a person timely who ceased to be
a government employee. This pension is his benefit which he cannot transfer just like his salary.

•In Saundariya Bai v. Union of India, it was held by the court that pension is not
transferable and as long as such is in the hands of the government.

Section 6(h) : Nature of interest

According to this section, the Transfer should not affect the nature of the interest of anyone. For
example, the public or religious uses or services cannot be transferred. If any transfer whose object
is unlawful or has unlawful consideration is not permissible under this section. Also if the property
is transferred to someone who is disqualified legally to be a transferee then such transfer is not
valid.

Example

X, Y, and Z entered into an agreement for the division of gains among them which they acquired by
fraud. Hence, this agreement is void as the consideration is unlawful.

# ESSENTIAL ELEMENTS OF A VALID CONTRACT

The following are the essential elements of a valid contract.

1. OFFER AND ACCEPTANCE

Basically, a contract unfolds when an offer by one party is accepted by the other party .
The accepted offer should be without any qualification and be definite. An offer needs to
be clear, definite, complete and final. It should be communicated to the offeree. A proposal
when accepted becomes a promise or agreement. The offer and acceptance must be
‘consensus ad idem’ which means that both the parties must agree on the same thing in
the same sense i.e. identity of wills or uniformity of minds.

2. INTENTION TO CREATE LEGAL RELATIONSHIP

The intention of the parties to a contract must be to create a legal relationship between
them. Agreements of social nature, as they do not contemplate legal relationship, are not
contracts. For instance, if a father fails to give his daughter the promised pocket money,
the daughter cannot sue the father, because it was purely a domestic arrangement. Thus,
it is clear that all agreements, which do not result in legal relations, are not contracts.

3. CAPACITY TO CONTRACT

If an agreement is entered between parties who are competent enough to contract, then
the agreement becomes a contract.

4. GENUINE AND FREE CONSENT

Free consent is another essential element of a valid contract. An agreement must have
been made by free consent of the parties. The contract would be void in case of mutual
mistakes. When consent is obtained by unfair means, the contract would be voidable.

5. LAWFUL OBJECT

Objectives of an agreement should be lawful. It must not be illegal or immoral or opposed

to public policy. It is lawful unless it is forbidden by law. When the object of a contract is
not lawful, the contract is void.

6. LAWFUL CONSIDERATION

Something in return is Consideration. In every contract, agreement must be supported by

consideration. It must be lawful and real.

7. CERTAINTY AND POSSIBILITY OF PERFORMANCE

The agreements, in which the meaning is uncertain or if the agreement is not capable of
being made certain, it is deemed void. T&C of the contract should always be certain and
cannot be vague. Any contract that are uncertain are considered void. The terms of the
agreement must also be capable of performance and should not enforce impossible act.
8. LEGAL FORMALITIES

Legal formalities if any required for particular agreement such as registration, writing, they
must be followed. Writing is essential in order to effect a sale, lease, mortgage, gift of
immovable property etc. Registration is required in such cases and legal formalities in the
relevant legislation should be strictly followed.

# EXCHANGE UNDER THE TRANSFER OF PROPERTY ACT, OF 1882

INTRODUCTION
We know that the transfer of any property against consideration is called a “Sale”, and a
transfer without consideration is called a “Gift”. Now, when a property has been
exchanged with another, it is called an EXCHANGE under the Transfer of Property
Act, of 1882

SECTION – 118 EXCHANGE

When two persons mutually transfer the ownership of one thing for the ownership of
another, neither thing or both things being money only, the transaction is called an
Exchange
A transfer of property in completion of an exchange can be made only in the manner
provided for the transfer of such property by sale.

FEATURES OF EXCHANGE
Transfer Of Ownership

The exchange involves the transfer of ownership of some existing property. In the transfer
of ownership, the absolute interest of the owner is transferred. A partition of immovable
property is not considered an exchange.

Property need not be immovable property

In Exchange, properties may be immovable or movable. An immovable property can be

transferred against a movable property and vice versa

Exchange includes “Barter”

The exchange of one immovable property with another immovable property is known as
“Barter” and the same in the case of the transfer of one movable property against another
moveable property.
Mode of Transfer

Section 118 provides that a transfer of property in completion of an exchange can be made
only in a manner prescribed for the transfer of such property by “Sale”. The formalities of
Section 54 (dealing with the sale of properties) will be complied with
Where both properties are of movable, then an exchange may be affected by the delivery
of properties and registration is not essential.
Where properties are immovable, but the value is less than Rs. 100, then registration is
optional
Where the properties exchanged are immovable properties and their value are more than
Rs. 100/- then registration of exchange of ownership through an instrument is necessary.
LET’S CONSIDER THE DIFFERENCE BETWEEN EXCHANGE AND PARTITION

Exchange is the mutual transfer of ownership by two persons of different two

properties
A partition is merely an arrangement by which the several co-owners hold property
separately, which they previously held in a common pool.
Exchange is brought about by a contract between the parties.
The right of partition is a natural right and there is no need to enter into a contract
In an Exchange, the parties exchanging their properties have no interest prior to the
exchange in each other properties
In a partition, each party has as much interest in the entire property as the other. There is
no exclusive ownership under the partition.

# Essential elements
There are the following five essentials of a valid gift:

1.Transfer of ownership
2.Existing property
3.Transfer without consideration
4.Voluntary transfer with free consent
5.Acceptance of the gift

Transfer of ownership
The transferor, i.e., the donor must divest himself of absolute interest in the property and vest it in
the transferee, i.e., the donee. Transfer of absolute interests implies the transfer of all the rights and
liabilities in respect of the property. To be able to effect such a transfer, the donor must have the
right to ownership of the said property. Nothing less than ownership may be transferred by way of
gift. However, like other transfers, the gift may also be made subject to certain conditions.

Existing property
The property, which is the subject matter of the gift may be of any kind, movable, immovable,
tangible, or intangible, but it must be in existence at the time of making a gift, and it must be
transferable within the meaning of Section 5 of the Transfer of Property Act.

Gift of any kind of future property is deemed void. And the gift of spes successionis(expectation of
succession) or mere chance of inheriting property or mere right to sue, is also void.

Transfer without consideration

A gift must be gratuitous, i.e., the ownership in the property must be transferred without any
consideration. Even a negligible property or a very small sum of money given by the transferee in
consideration for the transfer of a very big property would make the transaction either a sale or an
exchange. Consideration, for the purpose of this section, shall have the same meaning as given
in Section 2(d) of the Indian Contract Act. The consideration is pecuniary in nature, i.e., in
monetary terms. Mutual love and affection is not pecuniary consideration and thus, property
transferred in consideration of love and affection is a transfer without consideration and hence a
gift. A transfer of property made in consideration for the ‘services’ rendered by the donee is a gift.
But, a property transferred in consideration of donee undertaking the liability of the donor is not
gratuitous, therefore, it is not a gift because liabilities evolve pecuniary obligations.

Voluntary transfer with free consent

The donor must make the gift voluntarily, i.e., in the exercise of his own free will and his consent as
is a free consent. Free consent is when the donor has the complete freedom to make the gift without
any force, fraud coercion, and undue influence. Donor’s will in executing the deed of the gift must
be free and independent. Voluntary act on a donor’s part also means that he/she has executed the gift
deed in full knowledge of the circumstances and nature of the transaction. The burden of proving
that the gift was made voluntarily with the free consent of the donor lies on the donee.

Acceptance of gift

The donee must accept the gift. Property cannot be given to a person, even in gift, against his/her
consent. The donee may refuse the gift as in cases of non-beneficial property or onerous gift.
Onerous gifts are such where the burden or liability exceeds the actual market value of the subject
matter. Thus, acceptance of the gift is necessary. Such acceptance may be either express or implied.
Implied acceptance may be inferred from the conduct of the donee and the surrounding
circumstances. When the donee takes possession of the property or of the title deeds, there is
acceptance of the gift. Where the property is on lease, acceptance may be inferred upon the
acceptance of the right to collect rents. However, when the property is jointly enjoyed by the donor
and donee, mere possession cannot be treated as evidence of acceptance. When the gift is not
onerous, even minimal evidence is sufficient to prove that the gift has been accepted by donee.
Mere silence of the donee is indicative of the acceptance provided it can be established that the
donee had knowledge of the gift being made in his favour.

Where the deed of gift categorically stated that the property had been handed over to the donee and
he had accepted the same and the document is registered, a presumption arises that the executants
are aware of what was stated in the deed and also of its correctness. When such presumption is
coupled with the recital in the deed that the donee had been put in possession of the property, the
onus of disproving the presumption would be on the donor and not the donee.

Where the donee is incompetent to contract, e.g., minor or insane, the gift must be accepted on his
behalf by a competent person. The gift may be accepted by a guardian on behalf of his ward or by a
parent on behalf of their child. In such a case, the minor, on attaining majority, may reject the gift.

Where the donee is a juristic person, the gift must be accepted by a competent authority
representing such legal person. Where the gift is made to a deity, it may be accepted by its agent,
i.e., the priest or manager of the temple.

Section 122 provides that the acceptance must be made during the lifetime of the donor and while
he is still capable of giving. The acceptance that comes after the death or incompetence of the donor
is no acceptance. If the gift is accepted during the life of the donor but the donor dies before the
registration and other formalities, the gift is deemed to have been accepted and the gift is valid.

Revocation of gift under the Transfer of Property Act, 1882

As per Section 122, the definition of ‘gift’ is clear. Section 122 of the Act allows the transfer of
immovable and movable property with the acceptance of the gift done in the lifetime of the donor
(the one giving the gift) and the gift agreement stands void if the donee (the one receiving the gift)
dies before he/she/they can receive the gift from the donor.

It is a general rule that a person cannot take back the gift/suspend it from the person to whom it was
given except under the conditions which have been mentioned below.

As per Section 126, the revocation or suspension of a gift may be done on the happening or not
happening of an event which is agreed by the donor as well as the donee and on which the donor
does not have any control. For example, A gifts a car to B with a condition that A and B both agree
on that if B or B’s descendants die before A dies then A will take possession of the car. B and his
descendants die in a train accident during the lifetime of A. A takes possession of the car.
When Section 126 of the Transfer of Property Act, 1882 is read with Section 19 of the Indian
Contract Act, 1872 it applies that the gift is revocable at the option of the donor if the consent of the
donor has opted through coercion, fraud, misrepresentation or undue influence by the donee. Just as
the contract would be revocable under the said condition of Section 19 the same shall apply to
Section 126 in which instead of the contract the gift shall be revoked.
For example, B a trustee of an institution receives gifts from the parents of certain students. Since B
is in a position of dominance there can be a chance that B used undue influence to get the gifts from
the parents. Under such situations, the gift can be revoked at the option of the parents.
# Right of Redemption of a Mortgagor:
The term “mortgage” refers to the agreement between the mortgagor (one who takes the loan) and
mortgagee (one who gives the loan), which gives the mortgagee the right to acquire the property in
the case of non-payment of the loan amount.
Illustration
Mortgage loans are utilized to buy a home or to borrow money against the value of the loan that is
given to the mortgagor.
Elaboration
Section 60 of The Transfer of Property Act, 1882, states that at any time after the principal money
has become due, the mortgager has a right on payment or tender at a proper time and place of the
mortgaged money to require the mortgage
(a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged
property, which are in the possession of the mortgagee
(b) where the mortgagee has the mortgaged property, to deliver possession thereof to the mortgagor
and
(c) at the cost of, the mortgagor either to re-transfer the mortgaged property to him or such third
person as he may direct or to execute and to have registered and acknowledgment in writing that
any right in derogation of his interest transferred to the mortgagee has been extinguished.
Provided,
That the right conferred by this section has not been extinguished by the act of the parties or by
decree of a court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit
for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that if the time
fixed for the payment of the principal money has been allowed to pass or no such time has been
fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of a portion of the mortgaged property- Nothing in this section shall entitle a person
interested in a share only of the mortgaged property to redeem his share only on payment of a
proportionate part of the amount remaining due on the mortgaged except only where a mortgagee or
if there are more mortgagees than one all such mortgagee has or have acquired in whole or in part a
share of the mortgagor.
Section 61 of The Transfer of Property states about Right to redeem separately or simultaneously –
A mortgager who has executed two or more mortgages in favor of the same mortgagee shall, in the
absence of a contract to the contrary, when the principal money of any two or more of the
mortgages has become due, be entitled to redeem anyone such mortgage separately or any two or
more of such mortgages together.
Meaning of Foreclosure of Mortgage
Foreclosure refers to the legal process wherein a banker/financier/lender attempts to recover the
amount of loan from a borrower who has discontinued making payments to the lender thereby
constraining the sale of assets being used as the collateral security for the loan.
In a nutshell, mortgage lender, mortgagee or other lien holder obtains a termination of mortgage and
the borrower’s right of redemption by the court’s order. Thus, through the process of foreclosure,
the lender seeks to foreclose and terminate the mortgagor’s right to redemption.
Right to foreclosure
Whenever a loan is granted by the bank against the security of some immovable property, such as
in case of a home loan, then the borrower creates a mortgage on the immovable property, i.e. on the
property so mortgaged (here, the home). The concept of the right of foreclosure as well as the right
to redemption comes into question in case of the mortgage. The right to foreclosure merely means a
right available to the mortgagee for the purpose of recovering his outstanding loan amount. The
relevant provisions to this subject of discussions are Section 67 and Section 68 of the Transfer of
Property Act, 1882.
Under section 67, Transfer of Property Act, 1882, the right of foreclosure is the right of the
mortgagee (the bank). This right is available to the mortgagee (lender) when the mortgage money
is due and not paid by mortgager (borrower). Thus, the accessibility to the right of foreclosure is
readily obtainable to the mortgagee on the instance when the mortgager haven’t paid the principle
and interest amount of loan on due date. In comparison to the right of foreclosure, the right of
redemption is available to the mortgager when the amount of loan has been paid back. i.e. the
mortgager by paying back the mortgage money possess the right to take back the mortgaged
property.
In case of foreclosure of the property, the mortgagee can obtain a court decree which debars the
mortgager of his right of redemption. So, once this decree is obtained by the mortgagee through the
court, a bar will be placed on the mortgager for using his right of redemption.
Section 67 of the Transfer of Property Act, 1882, explains the conditions where the mortgagee can
either sell the property, do its foreclosure or neither sell it nor do its foreclosure. There are six types
of mortgage namely:
1) Simple Mortgage
2) Mortgage by conditional sale
3) Usufructuary Mortgage
4) English Mortgage
5) Mortgage by deposit of title deeds
6) Anomalous Mortgage

# Components of lease
A lease is a transfer of ‘right to enjoy’ thereby creating an interest of the
lessee. This is not a mere permission as like a licence, but it creates a kind of
possession and ownership for a certain period of time or in perpetuity, as
determined by the parties. However, the actual right, title, ownership always
remains with the lessor and the lessor can regain his possession and full
control if the lease is duly terminated or lessee is restrained by his wish or as
per law.

To constitute a lease there must be a ‘consideration’, which can be paid to the

lessor by the lessee at the time of transfer or promised to pay to the lessor by
the lessee periodically or on specific occasions, as determined by the parties.
This consideration can be by way of money or by share of crops grown out of
cultivation of the lease-hold land, by rendering service, or by any other
valuable things. Whatever is the nature of the consideration, there must have
been a consideration to form a lease. A lease without a consideration is invalid.
The components of lease have been provided hereunder:

•Transfer of a right to enjoy such (immovable) property,

•Made for a certain time, express or implied, or in perpetuity,
•In consideration of a price paid or promised, or of money, a share of
crops, service or any other thing of value,
•To be rendered periodically or on specific occasions to the transferor
by the transferee,
•Who accepts the transfer on such terms.

Components of licence
A licence is a kind of grant or permission, but not any transfer of interest or
possession. After getting a licence, a licensee can do his business anywhere
according to the nature of business. Suppose, a bar owner does his business in
his space, on the other hand a customs agent licence entitles the licensee to do
work in the concerned offices. A land-owner can give permission to anybody or
a definite number of people to enter into his premises and do his job subject to
paying fees or charges as determined by the landowner. This permission is a
kind of licence. If any person does the respective work without licence, that
would be an unlawful activity. The components have been stated hereunder:

•One person grants to another, or to a definite number of other

persons,
•A right to do, or continue to do,
•In or upon the immovable property of the grantor,
•Something which would, in the absence of such right, be unlawful,
and
 •Such right does not amount to an easement or an interest in the
property, the right is called a licence.

#DEFINE EASEMENT AND ITS ESSENTIAL

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882.
According to the provisions of Section 4, an easementary right is a right possessed by the owner or
occupier of the land on some other land, not his own, the purpose of which is to provide the
beneficial enjoyment of the land. This right is granted because without the existence of this right an
occupier or owner cannot fully enjoy his own property.
It includes the right to do or continue to do something or to prevent or to continue to prevent
something in connection with or in respect of some other land, which is not his own, for the
enjoyment of his own land.

Essentials of Easements
1. Dominant and Servient Heritage
For the enjoyment of right of easement, necessary existence of two properties i.e dominant and
servient heritage is a must. This is because as per the definition, it is the right exercised by the
owner or occupier of one land for enjoying the benefit of his/her land, over the land of some other
person. Dominant and servient heritage cannot be one. Thus, the existence of two properties and
that to be separate from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties shall be different and not a
single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a way which includes express and
implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a right through which the dominant
owner does some act to exercise the right over the land of the servient owner. Whereas, the latter
denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the
servient owner from doing certain act or acts.

In a right of easement an owner of dominant heritage can do an act or prevent the servient owner
from doing something but he cannot bind the servient owner to do something for him.

The easementary right exists only when two heritages are adjacent to each other. It is a right in rem,
which means a right available against the whole world. Easement as a right is always annexed to
the dominant tenement. It is a right of re-aliena which means a right over a servient
tenement and no on one’s own land.

#DOCTRINE OF SUBROGATION
INTRODUCTION:
In the realm of legal principles, the Doctrine of Subrogation stands out as a concept of immense
importance. It allows one entity to step into the shoes of another, asserting rights when they've
assumed a debt. Embedded in Indian law, from the Indian Contract Act to the Transfer of Property
Act and the Marine Insurance Act, this doctrine ensures accountability and fairness, safeguarding
contract integrity and trust in business relationships. In this exploration, we uncover the origins,
applications, and profound influence of Subrogation in shaping Indian contract law and promoting
responsible conduct among parties.

MEANING:
The Doctrine of Subrogation has been explained by the Supreme Court in the Judgement of
Economic Transport Organization v. Charan Spg. Mills (P) Ltd., (2010) 4 SCC 114. The Apex
Court has referred to the definition of the term subrogation which simply means substitution of one
person for another. The definition emphasizes that a party is allowed to stand in the shoes of another
and assert that person's rights against the defendant in a particular case wherein for some justifiable
reason, it has paid a debt owed by the defendant.

EXPLANATIONS AS PER ACTS:

The Indian Contract Act, 1872 deals with the principle of subrogation with reference to rights of a
surety/guarantor. By virtue of Section 140 of the Indian Contract Act, 1872, a guarantor upon
payment or performance of all that he is liable for, is invested with all rights which the creditor had
enjoyed against the principal debtor. The guarantor therefore can stand in the shoes of the creditors
and also have the same rights as the creditor against the principal debtor, provided the guarantor has
repaid the debt or dues.
Section 92 of The Transfer of Property Act, 1882 provides for the principles of subrogation wherein
a third party that has advanced an amount to a mortgagor and by such amounts the mortgaged
property has been redeemed entirely, such a third party shall be entitled to the rights that the original
mortgagee held. However, the conferment of such a right upon the third party shall be subject to the
affirmation of the mortgagor by a registered instrument.
Rights of subrogation are also statutorily recognized in Marine Insurance Act, 1963, under section
79 wherein an insurer acquires the interest and/or the rights and remedies of the assured party in the
subject matter that is insured to the extent that the insurer has indemnified the loss and made it
good. The insurer is therefore entitled to exercise whatever rights the assured possesses to recover
to that extent of compensation for the loss.
The principle broadly provides, when one party is obligated to indemnify or assume the liability for
another party's losses or liabilities and when the such a party incurs such losses, the doctrine of
subrogation allows the indemnitor to step into the shoes of the indemnified party and pursue
remedies against third party responsible for the loss. This legal mechanism ensures that the
indemnifying party is not unfairly burdened with losses.
# Clog on Redemption of Mortgage
Clog on redemption means barrier on redeeming the mortgaged property. There are
various judgments in which it was held that right of redemption of mortgagor cannot be
finished even if the loan amount is not paid on time. In Murarilal vs. Devkaranit, it was held
that the parties cannot restrict the right of redemption of mortgages even after the fixed
period, if done so such agreement will be void. But there are certain exceptions to it they
are:
•By submission of the right of redemption or by sale or by any method by the free
transaction.
•The right can be finished by the degree of the court.
•If the right of redemption is vested in one person.
•If the mortgaged property is vested in state.
Once a mortgage, always a mortgage
It is well known principle that once a mortgage is always a mortgage, some changes or
revision can be done to it. In a nutshell, the mortgage and right of redemption are
coextensive of each other whether it is described or not.
# ACTUAL AND CONSTRUCTIVE NOTICE

Actual notice and constructive notice are concepts often used in real property law to describe the
knowledge or notice that individuals have regarding certain facts or legal matters related to a
property. These concepts are particularly relevant in the context of property transactions and the
recording of interests in real estate. Here's an overview of each:

1. Actual Notice:

• Definition: Actual notice refers to direct knowledge or awareness that a person has
about a fact or a legal matter.
• Nature: It is based on the actual communication or personal awareness of
information. This can be explicit information received through communication or
implied knowledge gained through personal observation.
• Example: If a buyer directly informs a seller about a specific condition or
encumbrance on the property during negotiations, the seller is said to have actual
notice of that information.
2. Constructive Notice:

• Definition: Constructive notice is a legal presumption that a person is deemed to

have knowledge of certain facts or legal rights, whether or not they actually have
that knowledge.
• Nature: It is a legal fiction created by the law to impute knowledge to a person.
Constructive notice arises from the principle that certain information is a matter of
public record and should be known to all parties dealing with the property.
• Example: Recording a deed or a mortgage in the public land records is a form of
constructive notice. Anyone dealing with the property is presumed to have
knowledge of the recorded documents, even if they have not personally inspected
them.