Conveyancing and Law of Property Act

“bankruptcy” includes liquidation by arrangement, and any other act or proceeding in law having under any law for the time being in force effects or results similar to those of bankruptcy; and “bankrupt” has a corresponding meaning;

“building lease” is a lease for building purposes or purposes connected therewith;

“building purposes” includes the erecting and the improving of, and the adding to and the repairing of buildings;

“conveyance” includes assignment, appointment, lease, settlement and other assurance made by deed on a sale, mortgage, demise or settlement of any property, and on any other dealing with or for any property; and “convey” has a corresponding meaning;

“court” means the High Court;

“fine” includes premium or foregift, and any payment, consideration or benefit in the nature of a fine, premium or foregift;

“incumbrance” includes a mortgage in fee or for a less estate, and a trust for securing money, and a lien and a charge of a portion, annuity or other capital or annual sum; and “incumbrancer” has a corresponding meaning, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof;

“instrument” includes deed and will;

“land” includes land freehold and leasehold, or of whatever tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, and also an undivided share in land; In relation to land; “income” includes rents and profits; and “possession” includes receipt of income;

“lease” includes an agreement for a lease where the lessee has become entitled to have his lease granted;

“mortgage” includes any charge on any property for securing money or money’s worth;

“mortgage money” means money or money’s worth secured by a mortgage;

“mortgagee” includes any person from time to time deriving title under the original mortgagee;

“mortgagee in possession” is a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property;

“mortgagor” includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage according to his estate, interest or right in the mortgaged property;

“person” includes a corporation;

“property” includes real and personal property and any estate in any property, real or personal, and any debt and any thing in action, and any other right or interest in the nature of property, whether in possession or not;

“purchaser” includes a lessee or mortgagee and an intending purchaser, lessee or mortgagee or other person who for valuable consideration takes or deals for any property; and “purchase” has a corresponding meaning; but “sale” means only a sale properly so called;

“rent” includes yearly or other rent, toll, duty, royalty or other reservation by the area, quantity, weight or otherwise;

“securities” includes stocks, funds and shares;

“under-lease” includes an agreement for an under-lease where the under-lessee has become entitled to have his under-lease granted;

“under-lessee” includes any person deriving title under or from an under-lessee;

“will” includes codicil;

“writing” includes print; and words referring to any instrument, copy, extract, abstract or other document include any such instrument, copy, extract, abstract or other document being in writing or in print or partly in writing and partly in print.

A mortgage of land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Part I of the Schedule, with such variations and additions, if any, as circumstances may require, and this section shall apply thereto.

There shall be deemed to be included, and there shall by virtue of this Act be implied, in the mortgage deed, in addition to all other covenants, powers and provisions implied by virtue of this Act —

A transfer of a statutory mortgage may be made by a deed expressed to be made by way of a statutory transfer of mortgage, being in such one of the 3 Forms A, B and C in Part II of the Schedule as may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and this section shall apply thereto.

In whichever of these Forms the deed of transfer is made, it shall have effect as follows:

If the deed of transfer is made in the Form B in Part II of the Schedule, there shall also be deemed to be included, and there shall be implied therein, a covenant with the transferee by the person expressed to join therein as covenantor —that the covenantor will, on the next of the days by the mortgage deed fixed for payment of interest, pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate on the successive days by the mortgage deed fixed for payment of interest.

If the deed of transfer is made in the Form C in Part II of the Schedule, it shall operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and this section shall have effect in relation thereto accordingly; but it shall not be liable to any increased stamp duty by reason only of its being designated a mortgage.

The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power.

Every assurance, instrument and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.

This section shall apply to powers of attorney created by instruments executed before, on or after 1st August 1886.

Any person making or doing any payment or act, in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that before the payment or act the donor of the power had died or become of unsound mind, or bankrupt, or had revoked the power, if the fact of death, unsoundness of mind, bankruptcy or revocation was not at the time of the payment or act known to the person making or doing the same.

This section shall not affect any right against the payee of any person interested in the money so paid; and that person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.

A statutory declaration by an attorney to the effect that he has not received any notice or information of the revocation of such power of attorney by death or otherwise shall, if made immediately before or within 3 months after any such payment or act, be taken to be conclusive proof of such non-revocation at the time when the payment or act was made or done.

Where the donee of the power of attorney is a corporation aggregate, the officer appointed to act for the corporation in the execution of the power may make the statutory declaration in like manner as if that officer had been the donee of the power.

Where probate or letters of administration have been granted to any person, as attorney for some other person, this section shall apply as if the payment made or acts done under the grant had been made or done under a power of attorney.

For the purposes of this section, a photographic reproduction of any such instrument made in such manner and of such dimensions as may be prescribed by general rule shall be deemed to be a true copy of the instrument.

The affidavit or declaration, if any, verifying the execution of any instrument creating a power of attorney, or, where an office or true copy of such an instrument is deposited, an office or true copy of that affidavit or declaration, shall be deposited with the instrument or copy of the instrument, and paragraphs (a) and (b) shall apply, mutatis mutandis, to such office or true copy.

In the case of any instrument creating a power of attorney in a foreign language being so deposited, there shall be deposited therewith a translation thereof, certified by a sworn interpreter of the court, or if there is no interpreter attached to the court sworn to interpret in the language in which the instrument is written, the translation shall be verified by a statutory declaration of some person qualified to translate it.

A separate file of instruments so deposited shall be kept, and any person may search that file and inspect every instrument so deposited, and an office copy thereof, and if in a foreign language, of the translation thereof, shall be delivered out to him on request.

A copy of an instrument so deposited may be presented at the Registry, and may be stamped or marked as an office copy, and when so stamped or marked shall become and be an office copy.

An office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the Registry.

If the instrument so deposited is in a foreign language, an office copy of the translation deposited with the instrument shall without further proof be admissible in evidence as a correct translation of the original document.

The fees to be taken in the Registry shall be fixed by the Chief Justice with the concurrence of the President.

If any such instrument so deposited at any time thereafter has been or is revoked, the Registrar of the Supreme Court, on being satisfied by affidavit or statutory declaration or otherwise that the instrument has been revoked, shall endorse thereon a certificate stating that it has been revoked and the date thereof, and thereupon the instrument shall be deemed to have been duly revoked as from the date of that certificate.

Nothing in this section shall be deemed to affect or invalidate a revocation of any such instrument where no certificate is made or any earlier revocation thereof.

Any reference in subsections (2), (3), (4), (5), (6), (8) and (9) to an instrument shall be deemed to include a reference to a true or office copy of the instrument deposited in accordance with subsection (1).

Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold.

Under a contract to sell and assign a term of years derived out of a leasehold estate, the intended assign shall not have the right to call for the title to the leasehold reversion.

Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts or statutory declarations 12 years old at the date of the contract shall, unless and except so far as they are proved to be inaccurate, be taken to be sufficient evidence of the truth of those facts, matters and descriptions.

A purchaser of land shall not be entitled to require a title to be deduced for a period of more than 15 years or for a period extending further back than a grant or lease by the Crown or the State, whichever period is the shorter.

A purchaser of any property shall not be entitled to require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or expressly stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any information, or make any requisition, objection or inquiry, with respect to any such deed, will or document, or the title prior to that time, notwithstanding that any such deed, will or other document, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any deed, will or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will or other document so recited, and that every document so recited was duly executed by all necessary parties and perfected, if and as required, by acknowledgment, enrolment or otherwise.

Where land sold is held by lease (not including under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of the actual completion of the purchase.

Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and, on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date.

On a sale of any property, the expenses of the production and inspection of all records, proceedings of courts, deeds, wills, probates, letters of administration and other documents, not in the vendor’s possession, and the expenses of all journeys incidental to the production and inspection, and the expenses of searching for, procuring, making, verifying and producing all certificates, declarations, evidences and information not in the vendor’s possession, and all attested, stamped, office or other copies or abstracts of, or extracts from, any such documents as aforesaid, not in the vendor’s possession, if any such production, inspection, journey, search, procuring, making or verifying is required by a purchaser, either for verification of the abstract, or for any other purpose, shall be borne by the purchaser who requires them; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser.

On a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense.

The inability of a vendor of any property to furnish the purchaser with a legal covenant to produce and furnish documents of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of those documents.

Such covenants for production as the purchaser on any sale of property can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself and on behalf of and by necessary parties other than the purchaser.

Where the vendor on any sale of property retains any part of an estate to which any documents of title relate, he shall be entitled to retain those documents.

On a sale of property a stipulation shall be implied that the purchaser shall be entitled to the benefit of any insurance against fire which may be then subsisting thereon in favour of the vendor.

This section shall apply only to titles and purchasers on sales properly so called, notwithstanding any interpretation in this Act.

This section shall apply only if and so far as a contrary intention is not expressed in the contract of sale, and shall have effect subject to the terms of the contract, and to the provisions therein contained.

Nothing in this section shall be construed as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to this section, or any of them, specific performance of the contract would not be enforced against him by the court.

A vendor or purchaser of land, or their representatives respectively, may at any time or times, and from time to time, apply in a summary way to the court by summons intituled in the matter of this Act, and in the matter of the contract of sale, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract not being a question affecting the existence or validity of the contract.

The court shall make such order upon the application as seems just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid.

Where land subject to any incumbrance, whether immediately payable or not, is sold by the court, or out of court, the court may if it thinks fit, on the application of any party to the sale, direct or allow payment into court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in securities of the Government, or of India, or of Pakistan, or of the United Kingdom, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land of the amount sufficient to meet the incumbrance and any interest due thereon.

In either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the court for special reason thinks fit to require a larger additional amount.

Thereupon, the court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the court thinks fit, declare that land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in court.

After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey with the land all buildings, erections, fixtures, hedges, ditches, fences, ways, waters, watercourses, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

A conveyance of land having houses or other buildings thereon shall be deemed to include and shall by virtue of this Act operate to convey with the land, houses or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, houses or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses or other buildings conveyed, or any of them, or any part thereof.

This section shall apply only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.

This section shall not be construed as giving to any person a better title to any property, right or thing in this section mentioned than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties.

This section shall apply only to conveyances made after 1st August 1886.

In a conveyance there shall, in the several cases in this section mentioned, be deemed to be included, and there shall in those several cases, by virtue of this Act, be implied, a covenant to the effect in this section stated, by the person or each person who conveys, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common — On conveyance for value. Right to convey. Quiet enjoyment. Freedom from incumbrance. Further assurance(a)in a conveyance for valuable consideration, other than a mortgage, the following covenant by every person who conveys and is not expressed to convey in a fiduciary capacity: that, notwithstanding anything by the person who so conveys, or anyone through whom he derives title, otherwise than by purchase for value, made, done, executed or omitted, or knowingly suffered, the person who so conveys, has, with the concurrence of every other person (if any) conveying by his direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which, it is expressed to be conveyed, and that, notwithstanding anything as aforesaid, that subject-matter shall remain to and be quietly entered upon, received and held, occupied, enjoyed and taken, by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the benefit thereof shall be received and taken accordingly, without any lawful interruption or disturbance by the person who so conveys or any person conveying by his direction, or rightfully claiming or to claim by, through, under or in trust for the person who so conveys, or any person conveying by his direction, or by, through or under anyone not being a person claiming in respect of an estate or interest subject to which the conveyance is expressly made, through whom the person who so conveys derives title, otherwise than by purchase for value; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, claims and demands other than those subject to which the conveyance is expressly made, as either before or after the date of the conveyance have been or shall be made, occasioned or suffered by that person or by any person conveying by his direction, or by any person rightfully claiming by, through, under or in trust for the person who so conveys, or by, through or under any person conveying by his direction, or by, through or under anyone through whom the person who so conveys derives title, otherwise than by purchase for value; and further, that the person who so conveys, and any person conveying by his direction, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, other than an estate or interest subject to which the conveyance is expressly made, by, through, under or in trust for the person who so conveys, or by, through or under any person conveying by his direction, or by, through or under anyone through whom the person who so conveys derives title, otherwise than by purchase for value, will, from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required: (in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marriage); On conveyance of leasehold for value. Validity of lease(b)in a conveyance of leasehold property for valuable consideration, other than a mortgage, the following further covenant by every person who conveys and is not expressed to convey in a fiduciary capacity: that, notwithstanding anything by the person who so conveys, or anyone through whom he derives title otherwise than by purchase for value, made, done, executed or omitted, or knowingly suffered, the lease or grant creating the term or estate for which the land is conveyed is, at the time of conveyance, a good, valid and effectual lease or grant of the property conveyed, and is in full force, unforfeited, unsurrendered and in no way has become void or voidable, and that, notwithstanding anything as aforesaid, all the rents reserved by, and all the covenants, conditions and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed and performed, have been paid, observed and performed up to the time of conveyance: (in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marriage); On mortgages. Right to convey. Freedom from incumbrance. Further assurance(c)in a conveyance by way of mortgage, the following covenant by every person who conveys and is not expressed to convey in a fiduciary capacity: that the person who so conveys, has with the concurrence of every other person (if any) conveying by his direction, full power to convey the subject-matter expressed to be conveyed by him, subject as, if so expressed, and in the manner in which it is expressed to be conveyed; and also that, if default is made in payment of the money intended to be secured by the conveyance, or any interest thereon, or any part of that money or interest, contrary to any provision in the conveyance, it shall be lawful for the person to whom the conveyance is expressed to be made, and the persons deriving title under him, to enter into and upon, or receive and thenceforth quietly hold, occupy and enjoy or take and have, the subject-matter expressed to be conveyed, or any part thereof, without any lawful interruption or disturbance by the person who so conveys, or any person conveying by his direction, or any person not being a person claiming in respect of an estate or interest subject to which the conveyance is expressly made; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all estates, incumbrances, claims and demands whatsoever, other than those subject to which the conveyance is expressly made; and further, that the person who so conveys and every person conveying by his direction, and every person deriving title under any of them, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, or any part thereof, other than an estate or interest subject whereto the conveyance is expressly made, will, from time to time and at all times, on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, but, as long as any right of redemption exists under the conveyance, at the cost of the person so conveying, or of those deriving title under him, and afterwards at the cost of the person making the request, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of conveyance and every part thereof to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required; On mortgages of leaseholds. Validity of lease. Payment of rent and performance of covenants(d)in a conveyance by way of mortgage of leasehold property, the following further covenant by a person who conveys and is not expressed to convey in a fiduciary capacity: that the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid and effectual lease or grant of the land conveyed and is in full force, unforfeited and unsurrendered and in no way has become void or voidable, and that all the rents reserved by, and all the covenants, conditions and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed and performed, have been paid, observed and performed up to the time of conveyance; and also that the person so conveying, or the persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, pay, observe and perform, or cause to be paid, observed and performed all the rents reserved by, and all the covenants, conditions and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed and performed, and will keep the person to whom the conveyance is made, and those deriving title under him, indemnified against all actions, proceedings, costs, charges, damages, claims and demands (if any) to be incurred or sustained by him or them by reason of the non-payment of the rent or the non-observance or non-performance of those covenants, conditions, agreements, or any of them; On a settlement. For further assurance limited(e)in a conveyance by way of settlement, the following covenant by a person who conveys and is not expressed to convey in a fiduciary capacity: that the person so conveying, and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on his death, will, from time to time and at all times, after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by them or any of them shall be reasonably required; Conveyance by trustee. Against incumbrances(f)in any conveyance, the following covenant by every person who conveys and is expressed to convey in a fiduciary capacity, which covenant shall be deemed to extend to every such person’s own acts only: that the person so conveying has not executed or done, or knowingly suffered, or been party or privy to, any deed or thing, whereby or by means whereof the subject-matter of the conveyance, or any part thereof, is or may be impeached, charged, affected or incumbered in title, estate or otherwise, or whereby or by means whereof the person who so conveys is in anywise hindered from conveying the subject-matter of the conveyance, or any part thereof, in the manner in which it is expressed to be conveyed.

Where in a conveyance it is expressed that by direction of one person another person conveys, then, within this section, the person giving the direction shall be deemed to convey the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly.

The benefit of a covenant implied as aforesaid shall be annexed and incident to, and shall go with, the estate or interest of the implied covenantee, and shall be capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested.

A covenant implied as aforesaid may be varied or extended by deed, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects and consequences, as if the variations or extensions were directed in this section to be implied.

A person who is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as committee of a mentally disordered person, or under an order of the court, shall be deemed to be expressed to convey in a fiduciary capacity.

This section shall apply only to conveyances made on or after 1st August 1886.

On a sale, the purchaser shall be entitled either to require that the conveyance to him be executed in his own presence, or in that of his solicitor, or to have at his own cost the execution of the conveyance attested by some person appointed by him.

On a sale under a contract providing for the execution of the conveyance by an attorney under a power of attorney, the purchaser shall be entitled to require the power of attorney to be deposited by and at the expense of the vendor in the manner provided by section 48.

On the execution of a reconveyance or transfer or discharge of a mortgage by an attorney under a power of attorney, the mortgagor shall also be entitled to require the power of attorney to be deposited by and at the expense of the mortgagor in the manner provided by section 48.

Where a person retains possession of documents, and gives to another person an acknowledgment in writing of the right of that other person to production of those documents, and to delivery of copies thereof (referred to in this section as an acknowledgment), that acknowledgment shall have effect as in this section provided.

An acknowledgment shall bind the documents to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof; and every person so having possession or control from time to time shall be bound specifically to perform the obligations imposed under this section by an acknowledgment, unless prevented from so doing by fire or other inevitable accident.

The obligations imposed under this section by an acknowledgment are to be performed from time to time at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates.

The obligations imposed under this section by an acknowledgment are —

All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment shall be paid by the person requesting performance.

An acknowledgment shall not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, from whatever cause arising.

Any person claiming to be entitled to the benefit of an acknowledgment may apply to the court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some other person on his behalf; and the court may, if it thinks fit, order production, or production and delivery, accordingly, and may give directions respecting the time, place, terms and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents.

Where a person retains possession of documents and gives to another person an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled and undefaced, unless prevented from doing so by fire or other inevitable accident.

Any person claiming to be entitled to the benefit of such an undertaking may apply to the court to assess damages for any loss, destruction of, or injury to the documents or any of them, and the court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.

An undertaking for safe custody of documents shall by virtue of this Act satisfy any liability to give a covenant for safe custody of documents.

The rights conferred by an acknowledgment or undertaking under this section shall be in addition to all such other rights relative to the production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained.

This section shall apply only if and as far as a contrary intention is not expressed in the acknowledgment or undertaking.

This section shall apply only to an acknowledgment or undertaking given or a liability respecting documents incurred after 1st July 1903.

Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee’s part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased.

This section shall apply only to leases made on or after 1st August 1886.

The obligation of a covenant entered into by a lessor with reference to the subject-matter of a lease shall, if and so far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and so far as the lessor has power to bind the person from time to time entitled to that reversionary estate, that obligation may be taken advantage of and enforced against any person so entitled.

This section shall apply only to leases made on or after 1st August 1886.

Notwithstanding the severance by conveyance, surrender or otherwise of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition contained in the lease, shall be apportioned, and shall remain annexed to the several parts of the reversionary estate as severed, as shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone been originally comprised in the lease.

This section shall apply to leases made before, on or after 1st August 1886.

On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion.

This section shall apply only if and as far as a contrary intention is not expressed in the contract, and shall have effect subject to the terms of the contract and to the provisions therein contained.

Where a lease is made under a power contained in a settlement, will, Act or other instrument, any preliminary contract for or relating to the lease shall not, for the purpose of the deduction of title to an intended assign, form part of the title or evidence of the title to the lease.

This section shall apply to leases made before, on or after 1st August 1886.

Where a licence to do any act which without such a licence would create a forfeiture or give a right to re-enter under a condition or power reserved in any lease is at any time on or after 1st August 1886 given to any lessee or his assigns, every such licence shall, unless otherwise expressed, extend only to the permission actually given or to any specific breach of any proviso or covenant made or to be made or to the actual assignment, under-lease, or other matter thereby specifically authorised to be done, but not so as to prevent any proceeding for any subsequent breach unless otherwise specified in the licence.

All rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease or other matter not specifically authorised or waived by the licence, in the same manner as if no such licence had been given.

The condition or right of re-entry shall be and remain in all respects as if such licence had not been given, except in respect of the particular matter authorised to be done.

Where in a lease there is a power or condition of re-entry on assigning or under-letting or doing any other specified act without licence, and a licence at any time on or after 1st August 1886 is given to one of several lessees or co-owners to assign or under-let his share or interest or to do any other act prohibited to be done without licence, or is given to any lessee or owner or any one of several lessees or owners to assign or under-let part only of the property or to do any other such act as aforesaid in respect of part only of the property, the licence shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees or owner or owners of the other shares or interests in the property, or by the lessee or owner of the rest of the property, as the case may be, over or in respect of those shares or interests or remaining property, but the right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of the licence.

This section shall apply to leases made before, on or after 1st August 1886.

In all leases containing a covenant, condition or agreement against assigning, under-letting or parting with the possession, or disposing of the property leased without licence or consent, that covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of the licence or consent; but that proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to the licence or consent.

This section shall apply to leases made before, on or after 1st August 1886.

A right of re-entry or forfeiture under any provision or stipulation in a lease, for a breach of any covenant or condition in a lease, shall not be enforceable, by action or otherwise, unless the lessor serves on the lessee a notice specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

Where a lessor is proceeding, by action or otherwise to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action (if any) or in any action brought by himself, apply to the court for relief.

The court may grant or refuse relief as the court, having regard to the proceedings and conduct of the parties under subsections (1) and (2) and to all the other circumstances, thinks fit.

In case of relief the court may grant it on such terms, (if any) as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

A lessor shall be entitled to recover as a debt due to him from the lessee, and in addition to damages (if any) all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer or otherwise in reference to any breach giving rise to a right of re-entry or forfeiture, which at the request of the lessee is waived by the lessor by writing under his hand, or from which the lessee is relieved under the provisions of this Act.

Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso or stipulation in a lease, the court may, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease, or any part thereof, either in the lessor’s action (if any) or in any action brought by the person for that purpose, make an order vesting for the whole term of the lease or any lesser term the property comprised in the lease, or any part thereof, in any person entitled as under-lessee to any estate or interest in the property, upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security or otherwise as the court, in the circumstances of each case, thinks fit; but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

For the purposes of this section —

This section shall not extend to a covenant or condition against the assigning, under-letting, parting with the possession or disposing of the land leased; or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee’s interest.

This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

This section shall apply to leases made before, on or after 1st August 1886, and shall have effect notwithstanding any stipulation to the contrary.

This section has effect where a lessor is proceeding by action to enforce against a lessee a right of re-entry or forfeiture in respect of any immovable property for non-payment of rent.[Cf. 4 George II c. 28 (Landlord and Tenant Act 1730)][County Courts Act 1984, s. 138]

If, within the time prescribed by rules of court for acknowledging service of the writ by which the action was commenced, the lessee pays into court all the rent in arrear and the costs of the action, the action shall cease, and the lessee shall hold the land according to the lease without any new lease.

If —

The court may extend the period specified under subsection (3) at any time before possession of the land is recovered in pursuance of the order under that subsection.

Subject to subsection (6), if —

Subsection (2) shall not apply where the lessor is proceeding in the same action to enforce a right of re-entry or forfeiture on any other ground as well as for non-payment of rent, or to enforce any other claim as well as the right of re-entry or forfeiture and the claim for arrears of rent.

If the lessee does not —

The extension under subsection (4) of a period fixed by the court shall not be treated as relief from which the lessee is barred by subsection (7) if he fails to pay into court all the rent in arrear and the sum directed to be paid on account of the costs of the action within that period.

Where the court extends a period under subsection (4) at a time when —

Nothing in this section shall be taken to affect —

Where a mortgagor is entitled to redeem, he shall have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person as the mortgagor directs, and the mortgagee shall assign and convey accordingly.

The power given by this section to a mortgagor shall belong to and be capable of being enforced by each incumbrancer or by the mortgagor notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer shall prevail over a requisition of a mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

This section shall not apply in the case of a mortgagee being or having been in possession.

This section shall apply to mortgages made before, on or after 1st August 1886, and shall have effect notwithstanding any stipulation to the contrary.

A mortgagor, so long as his right to redeem subsists, may from time to time, at reasonable times, on his own request, and at his own cost, and on payment of the mortgagee’s cost and expenses in this behalf, inspect and make copies of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee, including the mortgage deed.

This section shall apply only to mortgages made on or after 1st August 1886, and shall have effect notwithstanding any stipulation to the contrary.

A mortgagor seeking to redeem any one mortgage may do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem.

This section shall apply only if and so far as a contrary intention is not expressed in the mortgage deeds or one of them.

Where the mortgage money is not paid on the stated day, the mortgagee shall be entitled, in the absence of any stipulation to the contrary in the mortgage deed, to 3 months’ notice in writing previous to payment or to 3 months’ interest in lieu of that notice.

This section shall apply to mortgages made before, on or after 1st August 1886.

A mortgagor of land while in possession, as against every incumbrancer, may make from time to time an agricultural or occupation lease of the mortgaged land or any part thereof for any term not exceeding 3 years.

A mortgagee of land while in possession, as against all subsequent incumbrancers, if any, and as against the mortgagor, may make from time to time —

Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.

Every such lease shall be made to take effect in possession not later than 12 months after its date.

Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.

Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified, not exceeding 30 days.

A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence.

Every such building lease shall be made in consideration of the lessee, or some person by whose direction the lease is granted, agreeing to erect within not more than 5 years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings within that time, or having executed, or agreeing to execute, within that time, on the land leased, an improvement for or in connection with building purposes.

In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first 5 years, or any less part of the term.

A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease, if granted, would be binding.

This section shall apply only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.

Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagee any further or other powers of leasing or having reference to leasing, and any further or other powers so reserved shall be exercisable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects and consequences, unless a contrary intention is expressed in the mortgage deed.

Nothing in this Act shall be construed to enable a mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the incumbrancers, if this Act had not been passed.

This section shall apply only in the case of a mortgage made on or after 1st August 1886; but the provisions thereof, or any of them, may, by agreement in writing made on or after that date between the mortgagor and mortgagee, be applied to a mortgage made before that date, so nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to any agreement, whether in writing or not, for leasing or letting.

A mortgagee, where the mortgage is made by deed, shall have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further:

The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of these powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in this Act.

This section shall apply only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

This section shall apply only where the mortgage deed is executed on or after 1st August 1886.

A mortgagee exercising the power of sale conferred by this Act may by deed convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights which have priority to the mortgage.

Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject (if any) or after payment into court under this Act of a sum to meet any prior incumbrances, shall be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses, properly incurred by him as incident to the sale or any attempted sale, or otherwise; and secondly, in discharge of the mortgage money, interest and costs, and other money (if any) due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.

The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.

The power of sale conferred by this Act shall not affect the right of foreclosure.

The mortgagee, his executors, administrators or assigns shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith.

At any time after the power of sale conferred by this Act has become exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property, an estate, interest or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him.

The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage, or arising thereunder.

A person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage.

Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage, shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act; but with this variation, that the costs, charges and expenses payable shall include the costs, charges and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money, instead of those incident to sale.

The amount of an insurance effected by a mortgagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specified for that purpose in the mortgage deed, or, if no such amount is therein specified, then shall not exceed two-third parts of the amount that would be required, in case of total destruction, to restore the property insured.

An insurance shall not, under the power conferred by this Act, be effected by a mortgagee in any of the following cases:

All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.

A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.

The receiver shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage deed otherwise provides.

The receiver may demand and recover all the income of the property of which he is appointed receiver, by action, distress or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and may give effectual receipts accordingly for the same.

A person paying money to the receiver shall not be concerned to inquire whether any case has happened to authorise the receiver to act.

The receiver may be removed, and a new receiver may be appointed, from time to time by the mortgagee by writing under his hand.

The receiver out of any money received by him may retain for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate, not exceeding 5% on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of 5% on that gross amount.

The receiver shall, if so directed in writing by the mortgagee, insure and keep insured against loss or damage by fire, out of the money received by him, any buildings, effects or property comprised in the mortgage, and being of an insurable nature, whether the same are affixed to the freehold or not.

The receiver shall apply all money received by him as follows:

Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption, in the alternative.