Transfer of Property Act (TPA)
Service and Tender under Sections 102 and 103, and the Rule-Making Power in Section 104
The mortgage chapter requires notices to be served and tenders to be made at several points — before a power of sale is exercised, when money is deposited in court, when interest is to be stopped. Sections 102 and 103 deal with the practical obstacles. The person to be served may live outside the district, or cannot be found at all, or may be a minor or of unsound mind. In each case the Act supplies a substitute, and where no substitute exists it sends the party to the court for directions. Section 104 leaves the detailed machinery to rules made by the High Court.
1. Section 102: Service or Tender on an Agent
Section 102, TPA — the substance Where the person on whom a notice is to be served, or to whom a tender is to be made, under the mortgage chapter does not reside in the district in which the mortgaged property or some part of it is situate, service on or tender to an agent holding a general power of attorney from him, or otherwise duly authorised to accept such service or tender, is deemed sufficient. Where no person or agent on whom the notice should be served can be found or is known to the person required to serve it, that person may apply to any court in which a suit might be brought for redemption of the mortgaged property, and the court shall direct in what manner the notice shall be served; a notice served in compliance with the direction is deemed sufficient. Proviso — where the notice is one required by section 83 in the case of a deposit, the application must be made to the court in which the deposit has been made. |
The situation | How service or tender is made |
|---|---|
The person resides in the district | Personally, in the ordinary way |
He resides outside the district in which the property, or part of it, is situate | On an agent holding a general power of attorney, or otherwise duly authorised to accept service or tender |
Neither he nor any such agent can be found or is known | Apply to any court in which a redemption suit could be brought; the court directs the manner of service, and service in that manner suffices |
The notice is the one required by section 83 on a deposit | The application must go to the court in which the deposit was made |
2. Section 103: Notice to a Person Incompetent to Contract
Section 103, TPA — the substance Where, under the provisions of the chapter, a notice is to be served on, or a tender made to, a person unable to contract, the notice is to be served on, or the tender made to, his legal curator — the guardian or manager in whom the management of his affairs is vested. Where there is no such curator, any person interested in the giving or making of the notice or tender may apply to a court in which a suit might be brought for redemption of the mortgage, and the court may appoint a guardian ad litem for the purpose of giving or receiving service of the notice, or of making or accepting the tender. |
- The section covers minors and persons of unsound mind, and anyone else who is unable to contract, on either side of the transaction.
- A notice served on the incompetent person himself is not good service. The whole object of the section is that somebody competent shall receive it and act on it.
- The guardian ad litem is appointed for a limited purpose — giving or receiving the notice, or making or accepting the tender — and not for the general conduct of the affairs of the person concerned.
- And the application may be made by 'any person interested', so a mortgagee wishing to serve a minor mortgagor, or a person wishing to tender to a minor mortgagee, may equally move the court.
3. Why These Provisions Matter
Where a notice or tender is required | Why defective service is fatal |
|---|---|
Section 69(2) — before exercising a power of sale without the court | A sale is not authorised unless the notice requiring payment has been served and the default has continued for the prescribed period |
Section 83 — on a deposit of the mortgage money | Under section 84 interest ceases only when the notice required by section 83 has been served on the mortgagee |
Section 84 — a tender of the mortgage money | Interest ceases from the date of a valid tender; a tender made to the wrong person is no tender |
Section 111(g) — the lessor's notice of intention to determine, in the corresponding lease provision | The analogy shows the general point: where the Act makes a right depend on notice, the notice must be given to the right person in the right way |
4. Section 104: The Rule-Making Power
Section 104, TPA 'The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.' |
- The rules must be consistent with the Act. The power is to carry the chapter into effect, not to alter its substance.
- They bind the High Court itself and the subordinate courts under its superintendence.
- They sit alongside Order 34 of the Code, which supplies the procedure for mortgage suits; the section is a residual power for matters of detail the Code does not cover.
5. The Three Sections in Outline
Section | Subject | Substance in a line |
|---|---|---|
102 | Service or tender on an agent | Where the person is outside the district, serve his duly authorised agent; where neither can be found, apply to the court for directions |
103 | Notice to a person incompetent to contract | Serve the legal curator; where there is none, apply to the court for a guardian ad litem for the purpose |
104 | Power to make rules | The High Court may make rules, consistent with the Act, to carry the chapter into effect in itself and in the courts subject to its superintendence |
6. Related Topics and Provisions
- Deposit of the Mortgage Money in Court, Section 83, and Cessation of Interest, Section 84 — where the notice does its work
- Section 69, TPA — the notice required before a sale without the intervention of the court
- Persons Entitled to Sue for Redemption, Section 91 — who may serve and be served
- Mortgage Suits under Order 34, Code of Civil Procedure, 1908 — the procedural companion
- Section 111(g), TPA — the corresponding notice requirement in the law of leases
- Order 32, Code of Civil Procedure, 1908 — suits by or against minors and persons of unsound mind