Property and Trust Law

English mortgage is where the mortgagor binds himself to repay the mortgage-money on a certain date and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed.

(i) The mortgage deed is the evidence of the interest transferred to the mortgage holder. Often simply referred to as the mortgage, the mortgage deed is the document transferred to the mortgage holder.

(ii) There are two parties to a mortgage: the mortgagor (the borrower) and the mortgagee (the lender)

(iii) A deed of trust involves three parties:      (a) the trustor (the borrower)      (b) the beneficiary (the lender)      (c) the trustee. 

(iv) Preference shares, also known as preferred shares, have the advantage of a higher priority claim to the assets of a corporation in case of insolvency and receive a fixed dividend distribution. Thus, (i) and (iv) are true.

Lien is a right to keep possession of property belonging to another person until a debt owed by that person is discharged. To constitute a pledge, delivery of possession, actual or constructive, to the pledge is necessary. If the person entitled to the security is in possession of the movable property, it is a pledge, carrying with it a power of sale on default of payment on the due date or if no date is fixed after notice. No particular formality is required to be done regarding creating charge on pledged movable property. 

Rights of the borrower as per SARFAESI Act, 2002: 

• The borrowers can at any time before the sale is concluded, remit the dues and avoid loosing the security.
• In case any unhealthy/illegal act is done by the Authorised Officer, he will be liable for penal consequences.
• The borrowers will be entitled to get compensation for such acts.
• For redressing the grievances, the borrowers can firstly approach the DRT and thereafter, the DRAT in appeal. The limitation period is 45 days and 30 days, respectively.

Section 5 provides for the acquisition of rights or interests in financial assets of any bank or financial institution by SCO/RCO, notwithstanding any thing contrary contained in any agreement or any other law for the time being in force, in either of the following manner: Issuing a debenture or bond or any other security in the nature of debenture, as consideration agreed upon by a SCO/RCO and bank/financial institution, incorporating therein the terms and conditions of issue. Entering into an agreement with bank/financial institution for the transfer of such financial assets on such terms and conditions as may be agreed upon.

Under sale of immovable secured assets, the authorised officer shall serve to the borrower a notice of 30 days for sale of the immovable secured assets.

Manager shall have power by notice in writing to recover any money from any person who has acquired any of the secured assets from the borrower, which is due or may become due to the borrower.

When sale of secured asset is made, the appropriation of sale proceeds realised are required to be made. Firstly, towards costs, charges and expenses incidental towards preservation and protection of securities, insurance premiums etc. that are recoverable from the borrower. Secondly, towards the due of the secured creditors. Thirdly, if there is any surplus, it will be paid to the person entitled thereto in accordance with the right and interests.

The doctrine of election is based on the principle of equity. The conditions necessary for application of this doctrine are as follows (1) The transferor must not be the owner of the property which he transfers (2) The transferor must transfer the property of the other owner to a third person (3) The transferor must at the same time grant some property in the same instrument, out of his own, to the owner of the property (4) The two transfers (transfer of the property of owner to the transferee and conferment of benefit on the owner of property) must be made in the same transaction (5) The question of election does not arise if the two transfers are made by virtue of two separate instruments (6) The owner must have proprietary interest in the property, a creditor is not put to election as he has only a personal right to be paid by the debtor  (7) The owner takes no benefit under a transaction directly, but diverts a benefit under it indirectly, is not put to election (8) Question of election does not arise when benefit is given to a person in a different capacity

It is the correct answer. The amount paid by a deceased partner is called legacy.

The account should be opened in the name of the individual with the addition of the words "executor or administrator". Thus, if 'X' has been appointed as an executor, then the addition of executor will be added. Thus, option 3 is the correct answer. 

Section 171 in The Indian Contract Act, 1872 General lien of bankers, factors, wharfingers, attorneys and policy-brokers — Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person has a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.

The execution of the 'will' will be carried by the executor. The executor can also inherit under the will.

Sec 378 of IPC states that whoever intending to take moveable property dishonestly without consent is said to commit theft.

Usufructuary mortgage is where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property. In such mortgage, there is no personal liability of the mortgager.