Property acquired from any person other than his or her paternal ancestors. Property acquired by the Hindu as his share of the partition of joint family property provided he has no son in existence. Property gifted by the father to her daughter at her marriage is known as separate property or self-acquired property.In a self-acquired property, ownership is straightforward with the buyer being the sole owner of the property. As an owner, one can transfer or sell the property to anyone at any time
The Hindu Succession Act, 1956, states that any property that is acquired by a person himself, either by way of his own resources or by way of division of the ancestral property, is his self-acquired property. Similarly, a property acquired by virtue of being a legal heir, through a gift deed or ‘will’ etc. also comes under the category of self-acquired property. Property inherited from a deceased brother, uncle, etc. is also self-acquired property.
Types of self acquired or separate properties :
1. Property acquired by own exertion and not by joint labour with other members of family, without detriment of family property.
2. Property inherited by a Hindu from any one other than his father,grandfather or great grand father
3. Property obtained as his share in partition of a joint family property, provided he has no issue (Issue in family law means children. If children are there, then they would also obtain a right in the property by birth as prior to partition it was part of Joint Family Property. After partition the person along with his sons would constitute a coparcenary.)
4. Property devolving upon sole surviving coparcener – no widow in existence who has power to adopt or having child in womb.
5. Property obtained by gift or will–not made to propositor by father,G For GGF–made exclusively for himself not for benefit of family
6. Property obtained by way of gift of ancestral movable property by father by way of affection
7. Governmental grants
8. Joint Family Property lost and subsequently recovered without the help of joint family funds
9. Gains of learning
10. Income from separate property
11. Marriage gifts
12. Income from Joint Family Property allowed to a person for their maintenance – eg. Amount given as maintenance to widows
13. Benefit of insurance policy–premium paid from Joint Family funds but for benefit of the intended person only.
Bidari Basamma v. Kanehikeri Bidari Sadyogathappa, AIR 1984 NOC 237 (Kant.) – where acquisitions are made by propositions after severance of Joint Family status – then income from same – self acquired/ separate.
Who has rights on self acquired property?
Sons and daughters have the first right (as Class I heirs) over the self acquired property of their father if he dies intestate i.e. without leaving a Will and since both the son and daughter are also coparceners, they also have the legal rights to get shares in ancestral property.
Can self acquired property be challenged?
Yes you can challenge it. But before that some aspect has to be seen that is whether property was self acquired property of your father and if so then your father has absolute right to execute will under section 30 of Hindu succession act.
Can self-acquired property become ancestral property?
According to the Hindu law, properties can be classified into two types: an ancestral property and a self-acquired property. The self-acquired and undivided property of a person’s great-great grandfather becomes an ancestral property.
Conclusion:
One of the most vexed question under the Hindu Law, is, whether a property acquires the character of self-acquired property or ancestral property. This is important because, if the property assumes character of self-acquired, then it falls into the hands of his sons as not coparcenary property, but would devolve upon on them in their individual capacity. The Hindu Succession Act, 1956, states that any property that is acquired by a person himself, either by way of his own resources or by way of division of the ancestral property, is his self-acquired property. An ancestral property turns into a self-acquired property when it is divided among the family members who have raised a claim to it. As soon as the property division is documented, the property becomes self-acquired.
Property inherited from a paternal ancestor: Property inherited by a male Hindu from his father, father’s father, or father’s father’s father, is ancestral property. The children, grandchildren and great-grandchildren of the person inheriting such property acquire an interest in it by birth.
Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.
Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.
This property should be four generation old.
It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.
The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.
The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.
Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common
Different Types of Ancestral Property
A. Property inherited from a paternal ancestor B. Property inherited from a maternal grand-father C. Property inherited from collaterals or from females D. Share allotted on partition E. Property obtained by gift or will from a paternal ancestor F. Accretions
A. Property inherited from a paternal ancestor:
Property inherited by a male Hindu from his father, father’s father, or father’s father’s father,is ancestral property. The children, grandchildren and great-grandchildren of the person inheriting such property acquire an interest in it by birth. Thus, the term ancestral property is confined to property descending to the father from his male ancestor in the male line, and it is only in that property that the sons (and now, the daughters) acquire an interest jointly with, and equal to that of, their father. Property inherited from other relatives would, therefore, not be ancestral property. For example: If X inherits property from his father’s father, it is ancestral property as regards his issues. If X has no son or daughter when he inherits such property, he holds the property as the absolute owner thereof, and he can deal with the property in any manner he may choose to. If, however, such a person comes into existence subsequently, he/she becomes entitled to an interest in such property by the mere fact of his/her birth, and X cannot claim to hold the property as an absolute owner; nor can he deal with it as he likes.
B. Property inherited from a maternal grand-father:
The principle of Hindu Law governing property inherited from a maternal grand-father is reflected in the following two decisions of the Privy Council. In Venkayyamma vs. Venkataramanyamma (1905 25 Mad. 678), where in this case, two brothers, who were living as a joint family, inherited some property from their material grand-father. When one of them died, leaving a widow, the question arose as to whether his share in the property passed to his widow by succession or to his brother by survivorship. The Privy Council held that the property which the brothers had inherited was joint property in their hands, and that the undivided interest of the deceased passed, on his death, to his brother by survivorship, and not to the widow. However, in a later decision Mohammad Hussain Khan vs. Babu Kishya Nandan Sahai, 1937 64 I.A. 250, the Privy Council reversed its earlier ruling, and held that such property is not ancestral property. The effect of this decision is that property inherited by a daughter’s son from his maternal grandfather is not ancestral property in his hands, but is his separate property.
C. Property inherited from collaterals or from females:
The only property that can be called ancestral property is that which has been inherited by a person from his father, father’s father, or father’s father’s father. Therefore, property inherited by a person from his collaterals, such as brother, uncle, etc., or property inherited by him from a female, e.g., his mother, will be his separate property.
D. Share allotted on a partition:
The share obtained by a coparcener on a partition of ancestral property is ancestral property as regards his issues. They take an interest in it by birth, whether they are in existence at the time of the partition or are born subsequently, as regards other relatives, however, such a share is separate property. So, if the coparcener dies without leaving any issue, it will pass to his heirs by succession.
E. Property obtained by gift or will from a paternal ancestor:
Where a Hindu makes a gift of his self-acquired or separate property to his son, or bequeaths it to him under a will, the question that arises is whether such property is the separate property of the son, or whether it is ancestral in his hands as regards his (his son’s) male issues. The Supreme Court has now expressed its view on this point in Arunachala Mudalier v. Muruganatha 1954 S.C.R. 243, where the Court observed, in that case, that it is not possible to hold that such property must necessarily and under all circumstances, rank as ancestral property in the hands of the donee (or legatee). Rather, it must be seen whether the donor intended that the donee should take it exclusively for himself or that the gift would be for the branch of the family. This decision of the Supreme Court thus makes it clear that there is no presumption either way; it is a question of fact in each case, to be decided after considering all the circumstances of the case.
F. Accretions:
Accumulations and accretions of income of ancestral property are ancestral property. In Ramanna v. Venkata, 1888 11 Mad. 246 held that, property purchased or acquired out of the income or with the assistance of ancestral property, would be ancestral property. In Lal Bahadur v. Kanhia Lal, 1907 29 All. 244 held that property purchased out of the sale proceeds of ancestral property or obtained in lieu of such property are ancestral property. It also be noted that children, grandchildren and great grandchildren acquire a vested interest, not only in the income and accretions of ancestral property which accrued after their birth, but also in that which accrued before their birth.
A mortgage complies with Roman Law’s “Hypotheca,” which allowed creditors to seize the debtor’s property and recoup their losses if the debtor failed to make payments. The notion of a mortgage is also recognised in Hindu and Islamic law, where the property is pledged to the creditor, the debtor is prohibited from possession until the obligation is repaid, and the creditor keeps the profits in place of interest.
In other words, a mortgage is to be understood as a transfer of interest explicitly in immovable property as security for a loan. Let’s say that Mr. X lends some money to Mr. Z, he may do so without asking for any security or he may demand some security for the payment of money. If Mr. X does not demand any security and Mr. Z fails to pay the same, the former will have a right to sue the latter for the money lent but if Mr. Z becomes insolvent, Mr. X may lose all of his money. However, in a situation where some security of adequate value is given for the loan, the lender (Mr. X) will be safeguarded if the borrower (Mr. Z) becomes insolvent since precedence is given to security over the claims of other creditors.
The fundamental component of a mortgage is that it is a transfer of a legal interest in the property with a provision for redemption, meaning that the interest will be re-conveyed upon debt repayment or the transfer will be void. The Transfer of Property Act, 1882 (hereafter “TPA”), Section 58, contains the mortgage-related provisions.
Definitions
Loans can be classified as either secured debt or unsecured debt. A pledge is used to secure a loan against movable property, while a mortgage is used to secure a loan against an immovable asset owned by the debtor. A mortgage is the transfer of a security interest in a specific piece of real estate used to secure the repayment of debt.
Justice Mahmud observed: “Mortgage, as understood in this country, cannot be defined better than by the definition adopted by the legislature in section 58, TPA.”
The TPA read with Order 34 Rules 1 to 15 of CPC, which deals with lawsuits relating to mortgages of immovable property, is where the entirety of Indian mortgage law is included, according to the Supreme Court’s observation in Kedar Lal v. Hari Lal . AIR 1952 Cal 176 It is crucial to remember that the court is constrained by these legislative restrictions.
Section 58(a) of TPA defines the terms ‘mortgage’, ‘mortgagor’, ‘mortgagee’, ‘mortgage-money’, and ‘mortgage-deed’.
Clause (a) of Section 58 reads:
A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement that may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.
As we all know, a “mortgage” refers to the transfer of a property interest in order to finance a debt that may or may not result in personal obligation. A “mortgagor” is a borrower who requires a loan and pledges his property as security, and a “mortgagee” is a party who grants the loan. Both the mortgage money and the mortgage deed, which is the legal document through which the property is transferred, are terms used to describe the sum of the current principal and interest payments.
Kinds of mortgage
Simple Mortgage [Section 58(b)]
Clause (b) of Section 58 reads:
Simple mortgage: When the mortgagor enters into a personal obligation to pay the mortgage sum without actually transferring ownership of the mortgaged property, and expressly or obliquely acknowledges that the mortgagee will have the right to sell the mortgaged property and use the proceeds of the sale to the extent necessary to satisfy the mortgage sum, the transaction is referred to as a simple mortgage.
The basic elements of a simple mortgage are:
The mortgagor must have bound himself personally to repay the loan;
The possession of the property is not given to the mortgagee; and
To secure the loan he has transferred to the mortgage the right to have the specific immovable property sold in the event of his failure to repay.
Mortgagor’s Personal Obligation
The personal duty of the mortgagor to make payments is the essential component of a simple mortgage. Due to the fact that accepting the loan creates a promise to pay, such personal liability or obligation to pay may be stated or inferred from the terms of a transaction.
The promise to pay is implicit in the borrowing transaction itself but it may be displaced by the terms of the mortgage transaction for instance in the case of a usufructuary mortgage.
No Delivery of Possession
In the case of a straightforward mortgage, possession stays with the mortgagor. The mortgagee obtains security in the form of the mortgaged property, not the rents and profits derived from it. A decree for possession would be unlawful under Section 68 if a simple mortgagee brought a lawsuit to enforce his security. Additionally, it wouldn’t function like a foreclosure; instead, it would change a basic mortgagee into a mortgagee in possession.
Right to cause the Property Sold
The mortgagee is empowered to sell the property in the case of non-payment of the mortgaged money. However, the power of sale is not to be exercised without the intervention of the court. This implies that the mortgagee needs to get a decree from the court to execute the sale. Upon the sale of property by the intervention of the court, the mortgagee shall get the money advanced by him with interest and the remaining portion of proceeds of sale shall be given to the mortgagor whose property was sold.
Registration
A simple mortgage can be created only through a registered document. According to Section 59, even when the sum of money secured is less than rupees 100, a simple mortgage needs to be effected by a registered instrument.
Mortgagee’s Remedy
In case the mortgagor fails to repay the loan within the stipulated date, the following two remedies are available to the mortgagee:
A simple mortgage entails a personal obligation on the part of the mortgagor to repay the debt, therefore the mortgagee may file a personal lawsuit against the mortgagor to reclaim the money. In this situation, he will receive a straightforward money decree.
To get his money back, the mortgagee might also ask the court to order the sale of the collateral. In this scenario, he wins a court order authorising the sale of the land.
The mortgagee may, however, file a single lawsuit encompassing both causes of action. The suit must be filed within 12 years of the date the loan, or the mortgage money, becomes due. He may sue the mortgagor personally or ask the court for a ruling in his favour for the sale of the property.
Mortgage by Conditional Sale [Section 58(c)]
Clause (c) of Section 58 reads:
Mortgage by conditional sale: When the mortgagor purports to sell the mortgaged property while placing conditions on it, such as the requirement that the sale become void upon the payment of the mortgage balance or that the buyer transfer the property to the seller upon the payment of the mortgage balance, the transaction is known as a mortgage by conditional sale, and the mortgagee is referred to as a mortgagee by condition.
Due to their religion’s ban on charging interest on money granted as a loan, Muslims invented the idea of a mortgage by conditional sale, also known as “bye-bil-wafa” in Arabic. They were able to pay off their principal and interest thanks to this form of mortgage while also maintaining their moral integrity.
Basic elements of a mortgage by conditional sale are:
The mortgagor must ostensibly sell the property to the mortgagee.
There must be a condition on such sale that either,
on the repayment of the debt on a certain date,
the sale shall become void or the buyer shall transfer the property to the seller, or in default of payment on the agreed date, the sale shall become absolute.
The condition must be contained in the same document.
In other words, when the mortgagor ostensibly sells the mortgaged property to the mortgagee with a certain condition such as:
If the mortgagee makes any default on repayment of the debt (if the loan is not repaid), the sale would become absolute and binding, or
If the mortgagee does not make any default in the payment (repayment of the debt has been made), the sale would become void, or
If the mortgagee makes the payment, the buyer shall transfer the mortgaged property to the seller (the mortgagor shall transfer the property back to the mortgagee), such a transaction is called a mortgage by conditional sale.
However, it is to be noted that no such transaction will be considered to be a mortgage where no condition is mentioned in the same document which shall affect the sale.
Condition in the Same Deed
There was a substantial shift brought about by the Proviso stipulated in clause (c) of Section 58. The following proviso was included as a result of Section 19 of the Transfer of Property (Amendment) Act of 1929:
With the caveat that no such deal shall be regarded as a mortgage unless the condition is included in the legal document that affects or pretends to impact the sale.
It specifies that any deed that seeks to effect a sale will only be referred to be a mortgage by conditional sale if it satisfies the requirements listed above. This change is not retroactive in any way. After this caveat, the buyback condition must be stated in the same document that specifies the ostensible sale in order for the transaction to be considered as a mortgage by conditional sale and not a sale in and of itself.
The intention of the Parties
Remember that any documents including reconveyance conditions would not in any way purport to be mortgages. When determining the nature of a transaction, one of the most important aspects to consider is the parties’ intentions, and if one party’s claim conflicts with the deed in question’s written terms, proof must be shown to the court. In the case of Sheikh Ebadat v. Pandit Chunchun Jha
The mortgagee is not allowed to include other of his properties in this transaction because there is no personal obligation on the part of the mortgagor to pay the loan in a mortgage by conditional sale. The rule of “No Debt, No Mortgage” is an exception in this case.
Absolute Ownership
In Thumbuswamy v. Hossain Rowthen, the Privy Council noted that the fundamental feature of a mortgage is that, in the event of a violation of condition, the sale deed would be performed itself and the transaction would turn into an absolute sale without any type of accountability between the parties.
The mortgagee does not have possession of the property in this type of mortgage i.e. it gets only qualified ownership which may lead to absolute ownership in case of default by the mortgagee.
Remedy Available
The mortgagee can only be compensated by foreclosure rather than sale, which requires a court order. Only when the mortgagor fails to make the required payment on time and the transaction becomes final can the mortgagee file a decree for foreclosure in accordance with Section 67 of the TPA, Rules 2 and 3 of Order 34, and CPC.
Usufructuary Mortgage [Section 58(d)]
Clause (d) of Section 58 reads:
Usufructuary mortgage.—If the mortgagee receives possession of the mortgaged property from the mortgagor, or if the mortgagor expressly or implicitly commits himself to doing so, and authorises the mortgagee to keep possession of the property until the mortgage is paid in full, as well as to receive all or any portion of the rents and profits accruing from the property, and to appropriate those rents and profits in lieu of interest, or payment of the mortgage-money, or partly in lieu of interest, or payment of.
The basic elements of usufructuary mortgage are:
The mortgagor either delivers possession or expressly or impliedly binds himself to deliver possession of the mortgaged property to the mortgagee.
The mortgagor authorises the mortgagee till the payment of the mortgage money is satisfied:
to retain such possession;
to receive the rents and profits or any part of such rents and profits arising from the property; and
to appropriate such rents and profits in lieu of interest, or payment of the mortgage money, or partly in payment of the mortgage money.
Delivery of Possession
As a guarantee for making mortgage payments, the mortgagor gives the mortgagee possession of the property that is subject to the mortgage. Until the debt is paid off, the mortgagee is allowed to keep possession of the property. Although it is possible for the mortgagor to offer an express or implied pledge to deliver possession, it is not necessary for this to occur at the time the deed is executed.
Rent and Profits
The mortgagor transfers ownership of the mortgaged property to the mortgagee as security for the repayment of the mortgage debt. The mortgagee has the right to hold onto the property as long as the loan is not paid in full. The stated or implied pledge to deliver possession by the mortgagor may be accepted in place of the actual conveyance of possession occurring at the time the deed is executed.
in lieu of interest,
in lieu of principal, or
in lieu of principal and interest.
When the principle is paid in the first instance, the mortgagor regains possession of the property. In the second instance, the mortgagee collects rents and profits until they are equal to the principal amount, at which point the mortgagor is entitled to reclaim possession while continuing to pay interest. In the final instance, the mortgagor is not granted possession until the principle and interest have been settled using the rentals and profits.
No Personal Liability of the Mortgagor
In the case of a usufructuary mortgage, the mortgagor assumes no personal liability for the payment of the mortgage debt. The mortgagee must use the property’s rents and profits to pay down his mortgage. Since it is difficult to foresee when the loan will be paid off, there is absolutely no time limit on how long the mortgage may continue to exist..
Mortgagee’s Remedies
If the mortgagor fails to handover ownership of the property, the mortgagee may file a lawsuit to regain possession or advance funds; however, if the mortgagor has already been granted possession, the mortgagor’s sole option is to keep the property until his debts are paid in full. The usufructuary mortgagee lacks the right to foreclose or sell the property. Because he can pay himself back, the mortgagee benefits..
Rights of Usufructuary Mortgagor
A usufructuary mortgagor has been given a right under Section 62 to recover possession of the mortgaged property from the mortgagee in the cases where:
The mortgagee was authorised to pay himself the amount of mortgage money from the rents and profits of the property and the mortgage money is paid,
The mortgagee is authorized to pay himself from the rents and profits and the terms stipulated for the payment of the mortgage money have expired and the mortgagor pays the mortgage money or balance of the same to the mortgagee or deposits it in the court.
English Mortgage [Section 58(e)]
Clause (e) of Section 58reads:
English mortgage.—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, the transaction is called an English mortgage.
Basic elements of an English mortgage are:
There is a consensus to pay the amount on the due date. The mortgagor has to repay the mortgage money on the due date.
There is an absolute transfer of property to the mortgagee.
Such absolute transfer needs to be subject to a proviso that the mortgagee will transfer the property to the mortgagor upon payment of mortgage money on the agreed date.
In the case of English Mortgage, the mortgagor transfers the ownership of the mortgaged property absolutely to the mortgagee as security. The mortgagee shall return or re-transfer the property once the mortgagor repays the amount as agreed on a particular date.
Personal Liability
In an English mortgage, there is a personal liability of the mortgagor to repay the amount of mortgage debt on a certain date as agreed. An agreement to pay is an important part of such a mortgage.
Remedy Available
In case of default by the mortgagor, the remedy available with the mortgagee is to sell off the mortgaged property and recover himself.
No Absolute Interest
The property is transferred completely, but there is a clause that allows for a retransfer if the mortgage borrower pays off the debt. Due to the transfer, interest is subject to the right of redemption.
where the mortgagor formally transfers the property to the mortgagee and agrees to pay back the debt to the mortgagee on a specific date. In this situation, two conditions are prevalent.
Mortgagor repays the amount: If the mortgagor repays the agreed upon to the mortgagee on the date specified, the property which was absolutely transferred by him shall be reconveyed to the mortgagor.
Mortgagor makes default in payment: If the mortgagor does not repay the amount on the mentioned date, then the remedy with the mortgagee is to sell off the property and recover its debt. However, there is a personal liability on the mortgagor to pay the debt.
Right of the Mortgagee
The mortgagee in this form of mortgage gets the right of possession whether the right of entry is expressed or not, and can retain the same till the said amount is not paid to him. But when the mortgagor is in possession he is entitled to profit but is not accountable to the mortgagee. However, where the mortgagee is in possession and is enjoying the profits from such property, it shall apply them in reduction to mortgagees dues.
For instance, B, a mortgagor absolutely sells the property to A through a sale deed. Here if B makes any default, A has to do nothing except registration of the sale deed, as an absolute right has been given to A.
Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]
Clause (f) of Section 58 reads :
Mortgage by deposit of title-deeds.—The delivery of title documents to immovable property to a creditor or his agent with the intention of creating a security interest thereon is referred to as a mortgage by deposit of title-deeds in any of the following towns: Calcutta, Madras, Bombay, and any other town that the State Government concerned may, by notification in the Official Gazette, specify in this regard.
Due to the lack of a written instrument or any other further requirements, this type of mortgage is known as a “equitable mortgage” in English law as opposed to a “legal mortgage.” The purpose of the law in allowing for such a mortgage is to provide the mercantile community with options in cases where it would be required to acquire money on the spot before having the chance to prepare a mortgage deed is feasible. Because it is an oral transaction, this sort of mortgage is exempt from the Law of Registration and does not require any writing.
The basic elements of this type of mortgage are:
There must be a debt.
There must be a deposit/delivery of the title deeds.
There is an intention that the deeds shall be security for the debt; and
Territorial restrictions
It’s vital to remember that not all places of India allow for the establishment of such mortgages. The location of the delivery of the deeds, not the location of the property mortgaged, is meant by the restriction to specified places. Additionally, a deposit of deeds outside of that region won’t result in either an exchange or a mortgage.
Existence of Debt
A debt may be of the present or the future variety. The term “mortgage” refers to the transfer of an interest in any property to secure the payment of funds advanced or to be advanced, a current or future debt, or the performance of any engagement that results in a pecuniary obligation. Equitable mortgage is just one of the modes of creating a mortgage, and clause (f) contains one.
Deposit of Title-Deeds
Providing documents in a constructive manner suffices in place of their actual delivery. There is no requirement that all title documents be deposited or that the deposited documents demonstrate a complete title in order for an equitable mortgage to be valid. If the deeds are genuine, pertain to the property, and serve as substantial proof of ownership, it is sufficient. An equitable mortgage is not established if any title of deed is not shown in any way in the documents that are placed but there are documents that exist that show his title to the property and they are not deposited.
Intention to Create Security
The gist of the transaction lies in the intention that the title deeds shall be security for the money borrowed (debt). Merely handing over the title deeds to Mr. X by Mr. Z does not create a mortgage. The deeds need to be delivered in the performance of that agreement that they are security for the debt.
The intention for creating security is a question of fact, not of law, which needs to be determined in all cases just like any other fact-based on presumptions and oral, documentary, or circumstantial evidence.
Anomalous Mortgage [Section 58(g)]
Clause (g) of Section 58reads:
Anomalous mortgage.—A mortgage that is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage, or a mortgage by deposit of title deeds within the meaning of this section is called an anomalous mortgage.
In order to protect various customary mortgages prevailing in different parts of the country, clause (g) was enacted by the legislation. An anomalous mortgage is said to be a combination of two or more mortgages.
This section shall be read with Section 98 of the TPA which reads :
Rights and liabilities of parties to anomalous mortgages.—In the case of an anomalous mortgage the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage deed, and, so far as such contract does not extend, by local usage.
Such agreement which is made between the mortgagor and the mortgagee according to their terms and conditions is called an anomalous mortgage. Where it is not a simple, usufructuary, mortgage by conditional sale, etc. is termed as an anomalous mortgage.
A usufructuary mortgage, for instance, can also hold the right to sell (as stated above, a usufructuary mortgage only possession is given to the mortgagee and it does not have the right of sale). Here, the mortgagee is granted ownership of the property for a predetermined amount of time under the proviso that, in the event of debt non-repayment, the mortgage will be declared a mortgage by conditional sale. This turns the mortgage into an anomalous mortgage because it is both a conditional sale mortgage and a usufructuary mortgage.
Remedy Available
In this case, the mortgage has the right of ‘foreclosure’ as well as ‘sale’ if the agreement of mortgage permits the same; and if the debt is not repaid, the mortgagee would become the owner of the property.
Mortgagor’s Right of Redemption
The mortgagor’s right of redemption may be exercised through the mortgage deed, and it may only be exhausted in the event of a mutual agreement between the parties, a court order, a statutory restriction, or both. The mortgagor’s right to redeem the mortgage is created when the mortgagee is paid; nevertheless, this right is only unusable when parties’ actions prevent it from being done.
There are two other terms as well which are used in relation to mortgage, which the reader must know. These are:
Sub mortgage
Where a mortgaged property is mortgaged again is termed as sub mortgage, or where the mortgagee mortgages its interest in the said property.
For instance, where Mr. X mortgages his house to Mr. Z for ₹15,000 and Mr. Z further mortgages its mortgagee rights( it can be the right to sue the mortgagor in case of default or possession, rents, etc) on the property to Ms. B for ₹5,000. Here Mr. Z created a Sub Mortgage.
Puisne mortgage (also called pari pasu mortgage)
When the mortgagor mortgage a property to one person and mortgages the same property to another person in order to secure another loan, the second mortgage is termed as Puisne Mortgage.
For instance, the property value of ‘Z’ is ₹1,00,00,000 (1 crore) has been given as security to the ‘Bank of Baroda’ for the loan of ₹10,00,000 (10 lakh). If an additional loan is required, the same can be taken from another bank due to the difference in interest rate. So here the same property can be used as security for securing another loan from ‘Syndicate Bank’ of ₹5,00,000 (5 lakh). This transaction of taking a loan from ‘Bank of Baroda’ would be referred to as the first mortgage while the loan from ‘Syndicate Bank’ would be referred to as the second or puisne mortgage. Here syndicate bank becomes puisne mortgagee and can recover its debt once the first mortgagee i.e. Bank of Baroda claims its money.
A puisne mortgage is allowed only after the 1st mortgagee permits to use the same property as security for another loan, by the valuation of the mortgaged property.
Conclusion
Consequently, a mortgage is defined as an express transfer of an interest in real property used as loan collateral. The most crucial aspect of a mortgage is that it transfers a legal interest in the property with a provision for redemption, meaning that the transfer will be nullified or the interest will be re-conveyed upon payment of the obligation.
The Transfer of Property Act, 1882, was promulgated embodying the principles of English Common Law, namely equity, good conscience, and justice underscored by the provisions of the Indian Contract Act, 1872, and came into force from July 1, 1882.
Property or ownership are synonymous with each other, and ownership interest is automatically created when a right is vested.
Ownership has to be:
Indefinite in terms of the user – The owner may use the property with certain restrictions without violating the rights of others, but at no time will it be deemed to be a negation of the owner’s ownership in the property, even if the rights may be restricted.
Unrestricted in the point of disposition – The owner is free to sell the property at any time. Minors (those under the age of 18) can own property but cannot alienate it, hence there are certain exceptions to this rule. Furthermore, the government may purchase the land without the owner’s permission in order to fulfil certain objectives.
Unlimited in the point of duration – As long as the property in question exists, the property rights are heritable. Again, the Government can, at any point, acquire the property and terminate the owner’s rights.
Transfers inter vivos, or between two living individuals, are covered by the Transfer of Property Act. A transfer is defined as an action in which one or more living people acquire property from another living person.
When the owner is the transferor and the transferee is the person or persons to whom the rights are transferred, the transferee can only get the rights of the transferor and nothing more.
The Transfer of Property Act, 1882, saw its first change in 1929, expanding the definition of “living persons” to encompass organisations made up of individuals, whether or not they are corporations.
Origin of the doctrine of Lis Pendens
The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine, 1857 Where the Court observed the following:
“This is a doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the Plaintiff will be responsible for the Defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo.”
The facts of the above case were the following:
A person, Mr X, sold an immovable property to Mr A.
Mr X’s son, Mr Z, who was the heir of Mr. X, sued Mr A in a competent court to declare the sale as void.
However, while this litigation was pending, Mr. A sold the property to Mr. B, who did not take notice of the suit.
The Court held that the son Mr. Z was entitled to the property and the sale was set aside.
Mr. B who purchased the property from Mr. A does not get any title as he purchased theproperty from someone who did not have the title and therefore cannot convey it.
Therefore, evolving the principles of common law and Section 52 of The Transfer of Property Act, 1882, was born and is as follows:
“When there is an ongoing lawsuit in any Court having authority within the limits of India, a suit or proceeding in which any right to immovable property is precisely in question, the property cannot be conveyed by any party to the lawsuit which can influence the rights of any other party thereto under any order which may be rendered therein, unless under the jurisdiction of the Court and on such conditions as it may enforce.“
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the concept based on the maxim “Pendente lite nihil innovature” which means that nothing new must be introduced while a litigation or suit is pending.
This Doctrine states that the Transfer of property shall be restricted when there is a litigation pending on the title or any rights that arise directly thereof involving an immovable property.
The suit commences the moment a complaint is presented or the day of commencement of proceedings in the appropriate Court and shall be terminated by Order of the Court.
The Court may, however, permit any party to the suit to transfer the property on such terms which it may think fit and proper to impose.
The sale of immovable property can take place through private negotiations, but the said Transfer will be subservient to the verdict of the competent Court.
The purpose of the doctrine of Lis Pendens
This doctrine is important because it bans the transfer of any contested property’s title without the court’s permission. Without it, disputes can drag on indefinitely and it will be impossible to bring a lawsuit to a successful conclusion.
The “Transferee pendente lite” is subject to the judgement in the same way as if he were a party to the action, and the transfer will be based on the outcome of the ongoing litigation.
Conditions for Applicability of the Doctrine as provided in Section 52
A suit or proceeding is pending.
The above suit is brought to a competent court within the jurisdiction.
The right to the title of an immovable property is directly in question.
There cannot be any collusion.
The suit should directly affect the rights of the other party.
The property in question is being transferred by either party.
Some examples for Non-Applicability:
This does not apply to a private sale by a creditor who has the authority to sell the property that is subject to a mortgage even if the borrower is the subject of an ongoing redemption action.
The Doctrine also does not apply if the item cannot be identified because of improper description.
The Doctrine does not apply when a right to the said immovable property is not directly in issue and hence alienations are authorised in a maintenance suit where the property is referenced simply to allow maintenance payments to be clearly assessed.
The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.
Understanding the jurisprudential evolution of this Doctrine
InAyyaswami vs Jayaram Mudaliar AIR 1973 SC 569, the Court held that the purpose of this provision is not to deprive the parties of every just or fair argument but rather to guarantee that the parties submit themselves to the jurisdiction and authority of the Court which shall determine all claims that are placed before it to the satisfaction of the parties concerned.
In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the Court ruled that Section 52 of the Transfer of Property Act, would not make void or unlawful any sale of the contested properties, but only puts the purchaser beyond the binding limits of the judgment on the disposition of the conflict.
The land in dispute was initially registered in the name of the Plaintiff in Koyalee v. Rajasthan District, AIR 2009 Raj.28. After his passing, his brother discovered it and, knowing full well that his brother’s wife was still alive and the only recorded legal heir, launched a lawsuit to pursue the Khatedari rights. As a result, the wife was forced to contest that she was the only recorded legal heir of the Khatedar. Although it reiterated its authority to exempt the suit property from the restrictions outlined in Section 52 of the Act, it allowed the Respondent to make a pendente lite move in Vinod Seth v. Devinder Bajaj, 2010. However, the Court has set a few restrictions on these Section 52 exemptions. In the case at hand, the Defendant wanted to transfer ownership of the land to a third party while the Plaintiff was a contractor who wished to benefit by erecting a structure on the suit-land. In order to transfer the subject property, the defendant was required to deposit a total of three lakh rupees as a security; this is the amount the claimant would have benefited from. In order to make the pendente lite transfer legal, the Court had so imposed the requirement for the payment of that amount.
The Court’s positions on this pendente lite-transfers issue are explained in Ashok Kumar v. Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a pendente lite cannot be transferred for a property whose title is the subject of litigation.
The rights of the person to whom the court would eventually have granted title to the property would be restricted by these transfer payments. When the court’s ruling upholds the pendente lite transferor’s entitlement to the property, the transferee’s title to the property is ignored. A transferor can only have title to a portion of the property, but, if the pendente lite transferor’s title is accepted for the entire property. The Transfer of the title of the rest of the land, for which there is no right for the pendente lite transferor, is invalid. This means that the transferee cannot claim the title or any other interest in the rest of the property. Finally, if the transferor was found to have no right in the first place to the transferred land, then the transferor would also not have gained rights on this property.
In accordance with Section 47(2) of the Registration Act of 1908, the Supreme Court considered and revised the law pertaining to the doctrine of lis pendens in the case of Har Narain v. Mam Chand. According to the lis pendens doctrine, no fixed property may be transferred while a litigation involving it is ongoing. A recorded sale deed for a fixed property is regarded as having existed upon registration under Section 47 as of the date of execution. The Court affirmed that the fiction created in accordance with Section 47 does not preclude the operation of a lis pendens. Therefore, the Court determined that land sales are nonetheless bound by the lis pendens concept even if the civil action begins later and is registered..
Suggestions
While the Doctrine is essential to guarantee the protection of the parties’ property rights, it is equally crucial to use technology to prevent the transfer of the property title under consideration while the case is still in progress. In order to ensure that the integrity and sanctity of the data are never in doubt, India has already created a Unique Identification System for all of its citizens via the Aadhaar card. This can be combined with the fact that all properties are given a property identification number to ensure that this can be done. Additionally, it will help to prevent situations in which the property cannot be located.
When an encumbrance certificate (EC) is issued, it mentions any encumbrance. This can be improved, so as to list any pending litigation(s) to alert the registering authority and the parties concerned.
Conclusion
The Lis Pendens doctrine strongly adheres to the theory of necessity rather than the theory of notice, which is guided by the three common law principles of justice, equity, and good conscience. Therefore, it is essential to making sure that justice is served without violating the rights of either party.
The Transfer of Property Act, 1882, was promulgated embodying the principles of English Common Law, namely equity, good conscience, and justice underscored by the provisions of the Indian Contract Act, 1872, and came into force from July 1, 1882. Property or ownership are synonymous with each other, and ownership interest is automatically created when a right is vested.
Ownership has to be:
Indefinite in point of the user – The owner may use the property subject to some restrictions without injuring the rights of other persons, but at no point in time will it negate the ownership in the property even if the rights may be curtailed.
Unrestricted in the point of disposition – The owner has an unfettered right to dispose of the property. However, there are exceptions to this as minors (those below the age of 18) can be owners but cannot alienate the property. Also, the Government may acquire the property for specific purposes irrespective of the property owner’s consent.
Unlimited in the point of duration – As long as the property in question exists, the property rights are heritable. Again, the Government can, at any point, acquire the property and terminate the owner’s rights.
The Transfer of Property Act covers transfers inter vivos, i.e., between two living persons. A transfer is defined as an act by which living persons convey the property to one or more living persons. The transferee can get the transferor’s rights and nothing more, where the owner is the transferor, and the transferee is the person or persons to whom the rights are conveyed. The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the definition of living persons was amended to include companies, associations, and bodies of individuals, whether incorporated or not.
Origin
The Doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine, 1857 Where the Court observed the following:
“This is a doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the Plaintiff will be responsible for the Defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo.”
The facts of the above case were the following:
A person, Mr X, sold an immovable property to Mr A. Mr X’s son, Mr Z, who was the heir of Mr. X, sued Mr A in a competent court to declare the sale as void. However, while this litigation was pending, Mr. A sold the property to Mr. B, who did not take notice of the suit. The Court held that the son Mr. Z was entitled to the property and the sale was set aside. Mr. B who purchased the property from Mr. A does not get any title as he purchased the property from someone who did not have the title and therefore cannot convey it.Therefore, evolving the principles of common law and Section 52 of The Transfer of Property Act, 1882, was born and is as follows:
When there is an ongoing lawsuit in any Court having authority within the limits of India, a suit or proceeding in which any right to immovable property is precisely in question, the property cannot be conveyed by any party to the lawsuit which can influence the rights of any other party thereto under any order which may be rendered therein, unless under the jurisdiction of the Court and on such conditions as it may enforce.
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the concept based on the maxim “Pendente lite nihil innovature” which means that nothing new must be introduced while a litigation or suit is pending.
This Doctrine states that the Transfer of property shall be restricted when there is a litigation pending on the title or any rights that arise directly thereof involving an immovable property. The suit commences the moment a complaint is presented or the day of commencement of proceedings in the appropriate Court and shall be terminated by Order of the Court. The Court may, however, permit any party to the suit to transfer the property on such terms which it may think fit and proper to impose. The sale of immovable property can take place through private negotiations, but the said Transfer will be subservient to the verdict of the competent Court.
The purpose of the Doctrine of Lis Pendens
This Doctrine is essential as it prevents Transfer of the title of any disputed property without the Court’s consent, there can be endless litigation, and it will become impossible to bring a lawsuit to a successful termination if alienations are permitted to prevail, and covenants are not imposed.
The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to the suit and the transfer shall be subservient to the result of the pending lawsuit. Let us understand the various conditions that need to be met for the doctrine to apply:
Conditions for Applicability of the Doctrine as provided in Section 52
A suit or proceeding is pending.
The above suit is brought to a competent court within the jurisdiction.
The right to the title of an immovable property is directly in question.
There cannot be any collusion.
The suit should directly affect the rights of the other party.
The property in question is being transferred by either party.
Some examples for Non-Applicability:
This does not apply to a private sale by a creditor who holds the right to dispose of the property that is mortgaged to it even when the borrower has a redemption suit pending.
The Doctrine also does not apply when the property is not described correctly, making it unidentifiable.
In a maintenance suit, where the property is mentioned only so that maintenance payments can be determined transparently; the Doctrine does not apply when a right to the said immovable property is not directly in question and alienations are thereby permitted.
The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.
Understanding the jurisprudential View
In Ayyaswami vs Jayaram Mudaliar AIR 1973 SC 569, the Court held that the purpose of this provision is not to deprive the parties of every just or fair argument but rather to guarantee that the parties submit themselves to the jurisdiction and authority of the Court which shall determine all claims that are placed before it to the satisfaction of the parties concerned.
In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the Court ruled that Section 52 of the Transfer of Property Act, would not make void or unlawful any sale of the contested properties, but only puts the purchaser beyond the binding limits of the judgment on the disposition of the conflict.
In the case ofKoyalee v. Rajasthan District, AIR 2009 Raj.28, the land in question was originally registered in the name of the Plaintiff’s husband. After his death, his brother realised and knowing well that the wife of his brother was alive and was the sole legal heir, filed a lawsuit pursuing the Khatedari rights, and pursuant to this, the wife had to contest that she was the sole legal heir of the recorded Khatedar. The brother further went on to transfer the land despite the lawsuit that was pending, since this was done without seeking the Court’s permission the transfer was struck down under Section 52 of the Transfer of Property Act as per the Doctrine of lis pendens.
InVinod Seth v. Devinder Bajaj, 2010, though reiterating its power to exclude the suit property from the limitations set out in Section 52 of the Act, it has allowed the Respondent to make a pendente lite move. These exemptions under Section 52 are, however, subject to certain conditions imposed by the Court. In the case at question, the Plaintiff was a contractor who wished to make a profit by constructing a building on the suit-land, and the Defendant wanted to move it to a third party. A total of three lakh rupees was to be deposited as a security by the Defendant to transfer the property in question, The sum the claimant would have profited by. The Court had thus levied the condition for the payment of that sum, which would make the pendente lite transfer legitimate.
The Court’s positions on this pendente lite-transfers issue are explained in Ashok Kumar v. Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a pendente lite cannot be transferred for a property whose title is the subject of litigation.
These transfer payments would limit the rights of the party to whom the Court would eventually have agreed that the property would be given the title. Where the right of the pendente lite transferor to the property is upheld under the decree of the Court, then the title of the transferee to the property is disregarded. However, if the title of the pendente lite transferor is acknowledged only for a smaller portion of the property, only for that portion of the property can a transferor have the title. The Transfer of the title of the rest of the land, for which there is no right for the pendente lite transferor, is invalid. This means that the transferee cannot claim the title or any other interest in the rest of the property. Finally, if the transferor was found to have no right in the first place to the transferred land, then the transferor would also not have gained rights on this property.
The Supreme Court discussed and amended the law concerning the Doctrine of lis pendens in Har Narain v Mam Chand, in compliance with Section 47(2) of The Registration Act, 1908. The lis pendens doctrine states that no fixed property may be transferred when a lawsuit relating to it is pending. Under Section 47, from the date of execution, a recorded sale deed of a fixed property is considered to exist upon registration. The Court made it clear that the fiction produced pursuant to Section 47 does not prohibit lis pendens from functioning. Thus, if the civil action starts and is registered later, the Court held that land sales are still subject to the principle of lis pendens.
To digitize all property records, while the Doctrine is necessary to ensure that the property rights of the parties involved are protected, it is also imperative that technology be employed so that the property title in question does not get transferred while the case is pending. This can be achieved by the complete digitalization of property records wherein all properties are accorded a property identification number, this along with the fact that India has already created a Unique Identification System for all its citizens via the Aadhaar card can be combined to ensure that the integrity and sanctity of the data are never in question. This will also help in avoiding cases where the property cannot be identified. When an encumbrance certificate (EC) is issued, it mentions any encumbrance. This can be improved, so as to list any pending litigation(s) to alert the registering authority and the parties concerned.
How Lis Pendens Work
Lis pendens is literally translated from Latin as “suit pending.” This condition can adversely affect the sale price or the possibility of a sale since any pending litigations are typically unfavorable for the owner. The term is commonly abbreviated “lis pend.”
Lis pendens provides constructive notice, or a warning, to prospective homebuyers that the ownership of a property is in dispute and litigation is pending. Lis pendens can only be filed if a claim is related specifically to the property. By filing a lis pendens, an individual or entity is protecting its claim to the title pending the lawsuit’s outcome.
When a Lis Pendens Is Used
Lis pendens can be used anytime there is a dispute over real property, but most of the time, it is used in three situations.
Divorce
A lis pendens is often filed in divorce cases where the distribution of real estate properties has not been settled. It is particularly common in cases where a property is listed in the name of one spouse, and the other spouse seeks a portion of the asset. The spouse whose name is on the title would have difficulty selling the property under pending litigation.
Mortgage Default/Foreclosure
Lis pendens is almost always used by lenders who have filed a notice of default on a delinquent borrower. Banks use the procedure to notify the public that a property is in foreclosure. Other creditors whose debt is secured by property can also foreclose on a property.
Contract Disputes
It is not uncommon for lis pendens to arise in contract disputes, where a buyer feels they have been wrongly excluded from purchasing a home. For example, if buyer A and a seller enter into a contract for the sale of a home and the seller decides to sell the house to buyer B, buyer A may sue the seller to enforce the sale.
The buyer can file a lis pendens after filing a lawsuit, making it difficult for the seller to sell the house. If buyer B proceeds with the purchase and the courts determine that buyer A is entitled to enforce the sale, buyer B loses the property to buyer A and must go to the seller to get their money back.
How to File a Lis Pendens
A lis pendens can only be filed if an action is pending. Additionally, the pending suit must involve real property, such as land and buildings. If these requirements are not met, the notice can be expunged.
Filing requirements vary by state, but generally, there are two steps. First, a lawsuit must be filed with the county clerk, and the suit must be pending. Second, the lis pendens must be recorded in the county land records so that it can be attached to the property’s title. Filing the lis pendens generally serves as the notice that there is a dispute on the property, but the requirements to serve notice also vary by state.
Because lis pendens requirements vary by state, you should contact a real estate lawyer in your area to learn if you need to file one and how it is served. It is possible to draft a lis pendens yourself based on information you can find online; however, this is a complex document that uses specific wording.
Conclusion
The doctrine of Lis Pendens is strictly based on the theory of necessity rather than on the theory of notice governed by the principles enshrined in common law, namely Justice, Equity and Good Conscience. It is, therefore, pivotal in ensuring that justice is provided without injuring the rights of either party. A lis pendens is an official notice to the public that a lawsuit involving a claim on a property has been filed. Lis pendens is connected to the concept that a property buyer must assume any litigation that exists pertaining to the property.
Solatium means A thing given to someone has compensation. It means a thing given to someone as compensation for consolation. It is being given to meet with the unwillingness of the persons interested to part with the property being acquired.
LEGAL MEANING OF SOLATIUM
Something is given in compensation for inconvenience, loss, injury, or the like recompense.
Law damages awarded to a plaintiff as compensation for personal suffering or grief arising from the injury
SOLATIUM IN LAND ACQUISITION
Solatium is part and parcel of compensation that is payable for compulsory acquisition of land, which may fetch a better price in the market to the landowner. Solatium and interest are integral parts of compensation that is awardable to persons whose lands have been compulsorily expropriated.
Section 30 award of solatium is the Right to fair compensation and transparency in land acquisition, rehabilitation, and resettlement act 2013
Importance of solatium
The collector having determined the total compensation to be paid , shall, to arrive at the final award,impose a solatium amount equivalent to 100% of the compensation amount i.e;; solatium amount shall be in addition to the compensation payable to any person whose land has been acquired
.Explanation.—For the removal of doubts, it is hereby declared that the solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.
The collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the first schedule.
In addition to the market value of the land provided under section 26, the collector shall,in every case, award an amount calculated at the rate of 12% annum on such market value for the period commencing on and from the date of publication of the notification of the social impact assessment study under section 4 (2) in respect of such land ,till the date of the award of the collector or the date of taking possession of the land whichever is earlier .
