Important Notes on Transfer of property Act

1) NOTES ON LEASES OF IMMOVABLE PROPERTY

https://www.lawweb.in/2018/06/notes-on-leases-of-immovable-property.html

2) NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

https://www.lawweb.in/2018/06/notes-on-part-performances-53a-of.html

3) Good article on subrogation( Transfer of property Act)

https://www.lawweb.in/2018/05/good-article-on-subrogation.html

4) Good legal article on Lis pendens( S 52 of Transfer of Property Act)

https://www.lawweb.in/2018/05/good-legal-article-on-lis-pendens.html

5)NOTES ON GIFT ( S 122-129 of Transfer of property Act)

https://www.lawweb.in/2018/06/notes-on-gift.html

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Good article on subrogation( Transfer of property Act)

S 92 OF TRANSFER OF PROPERTY ACT -SUBROGATION

Subrogation is a Roman term meaning “substitution”. It is the right of person to stand in the place of a creditor. When a mortgagee transfers his mortgage debt, his assignee becomes vested with all his rights that is his assignee is substituted or subrogated in the place of mortgagee. In order to be entitled to subrogation, a person must pay off the entire amount of a prior mortgage, because subrogation takes place by redemption,and unless there is redemption, there can be no subrogation. Partial payment of mortgage-debt can not give rise to a claim for a partial subrogation.

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How to ascertain limitation in suit for recovery of compensation in case of loss or injury to goods?

The period of limitation would obviously run only when a report on the loss that has occurred is obtained from an approved surveyor or loss assessor. The plaintiff can of course be non-suited on the ground of limitation if a suit for compensation is not filed within a period of three years therefrom. That does not however mean that a suit for compensation against a carrier for loss or injury of goods cannot be filed in the absence of such a report. S. 64UM(2) of the Insurance Act, 1938 has impact when the plaintiff or one of the plaintiffs is the insurer who sues on the strength of a letter of subrogation. The claim is settled and the insurer steps into the shoes of the insured on the strength of the letter of subrogation issued by the insured. It is only then can the insurer file a suit for compensation for the loss or injury of goods against the carrier as in the case on hand. The court below erred in holding that the period of limitation runs from the date of knowledge of the loss or injury of goods even for the first plaintiff. The decision in Associated Transport Corporation (P) Ltd.'s case (supra) is distinguishable since the claim therein was for a sum less than ` 20,000/-. There was no occasion therefore to consider the applicability of S. 64UM(2) of the Insurance Act, 1938 in the said decision relied on by the court below. The approved surveyor prepared the loss survey report on 29.8.1994 and the suit for compensation was filed on 25.3.1997 well within the period of three years. The period of limitation for filing a suit for compensation against a carrier for loss or injury of goods is three years when the loss or injury occurs. The suit filed by the insurer and the insured against the carrier is well in time and not barred by the law of limitation as has been erroneously held by the court below. 

IN THE HIGH COURT OF KERALA

A.S. No. 770 of 1999

Decided On: 14.12.2016

United India Insurance Company Ltd. Vs. Surat Goods Transport Service

Hon'ble Judges/Coram:

V. Chitambaresh and Anil K. Narendran, JJ.

Citation: AIR 2017(NOC)908 kerala

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Distinction between “subrogation” and “assignment”

Supreme Court relied upon the standard textbook Insurance Law by MacGillivray and Parkington (7^th Edition) in which distinction between “subrogation” and “assignment” has been explained to mean as under: -

“1131. Difference between subrogation and assignment.-Both subrogation and assignment permit one party to enjoy the rights of another, but it is well-established that subrogation is not a species of assignment. Rights of subrogation vest by operation of law rather than as the product of express agreement. Whereas rights of subrogation can be enjoyed by the insurer as soon as payment is made, as assignment requires an agreement that the rights of the assured be assigned to the insurer. The insurer can-not require the assured to assign to him his rights against third parties as a condition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assured's rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assured's rights, would be able to recover the extra money for himself whereas an insurer who was confined to rights of subrogation would have to allow the assured to retain the excess.

Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assured's rights under statute should proceed in his own name....”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3027 OF 2003

BHARAT DIESELS    Vs PRATAP SINGH                                  

 Dated;28.07.2009

BEFORE: -

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MR. B.K. TAIMNI, MEMBER

 PRONOUNCED ON         :   29.07.2009

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Difference between subrogation U/S 92 and S 135A the Transfer of Property Act, 1882

The difference between subrogation under Section 92 of the Transfer of Property Act, 1882, and Section 135A of the Act is that under Section 92 the subrogation results in the extinction of the original mortgagee's rights and, therefore, the original mortgagee has no more rights under the mortgage, whereas a subrogee under Section 135A acquires rights only to the extent of his payment which may be less than the rights of the assured himself. Another distinction is that the person who redeems under Section 91 is an interested person or a surety or a creditor and under that section that subrogee would get the rights conferred under Section 69 of the Indian Contract Act, 1872, because it would be a payment made by a person interested; but in the case of subrogation under Section 185A the insurer pays under his own contract of insurance and he is not interested in discharging the liability of the wrongdoer or the tortfeasor. The third distinction is that Section 92 confers on the person redeeming rights of the mortgagee "against the mortgagor or any other person". It is these words that confer the right to sue. There are no such words in Section 135A(2) and (3) as "against the wrongdoer or tort-feasor."

Bombay High Court

Oriental Fire & General Insurance ... vs American President Lines Ltd. And ... on 12 February, 1968

Equivalent citations: (1968) 70 BOMLR 487, 1968 38 CompCas 294 Bom,1970MhLJ156

Bench: Chitale, J Nain

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