Where There Are Equal Equities , The Law Shall Prevail

  Where There Are Equal Equities , The Law Shall Prevail 

Introduction 

According to this maxim where two persons have equitable interests in the same subject matter for example if each is equally entitled to the protection of a court of equity , and one of them in addition to his equity , also obtains the legal estate in the same subject matter then the latter will be preferred . In such a case , equity will refuse to interfere at all , and would thereby leave the parties to litigate in a court of law where , of course , the legal estate alone will be recognized .

Meaning Of The Meaning 

Equity provide no specific remedies where the parties are equal , or wher neither has been wronged

in other words A person in possession of the legal estate is entitled to priority over any person having merely an equitable estate in that property

Explanation 

When two parties wants the same things and the court cannot in good conscience say that
one has a batter right to the item then the other , the court of equity will refuse to decide and will leave the matter to the common law court .

Example 

A company that had been collecting to sale tax and turning it over to the state govt found that it had over taxed and over paid by two percent , it applied for refund but the state refused . The court of equity refused to decide the matter and to leave the law court , the court upheld the state on the ground that the money really belong to the customer of the company , since the company had no batter title to the money then the state , the court left the money with the state .

Concluding Remarks 

To Conclude i would say that a person in possession of the legal entitled priority over any person having merely an equitable estate in that property

Where Equities Are Equal The First In Time Shall Prevail

  Where Equity Are Equal The First In Time Shall Prevail  

More about the principle Where equities are equal the first in time prevail

It is also known as Qui prior Est tempore, potior  Estjure 

Introduction 

According to the maxim when there is no legal estate in the field and the question is as among the equitable estates only, the rule is that the person whose equity attached to the property first be entitled to priority over the other. 

Meaning of the Maxim 

Where there are two or more competing equitable interest , when two equities are equal the original interest such as the first in time will succeed. when there are two parties each have right to possess something then the one who acquired an interest first should prevail in equity .


For Example 

A person advertises  a Pet for sale in the classified section of New York Times the first person to see the ads offers him 500  Dollar less then the asking price But the person who is going to sell accept the cross offer , but the buyer asked , that he will take and pay the amount on Sunday , Meanwhile another buyer comes with offers more hen the previous and takes the pet himself , who owns the pet . contract law and the court equity agrees that the first buyer gets the pet and the second buyers gets his money back , Because Come first take first is the principal of equity 

Application Of the Maxim 

section 48 of transfer of property act 1882 is based on this maxim .

For Example 

A mortgages property first to B , and then to C, B's , interests having been created first in the point of time, B , will have priority over  C, . The rule applies only where equities are equal



Mortgage Executed By a  Receiver 

Where a mortgage is executed by Receiver under an order of court and by that order the court directs that such mortgage priority over any other mortgage of the earlier.


Concluding Remarks 


In conclusion I would like to conclude that where two parties have the equal right to possess something then the one who acquired an interest  first should prevail in equity.

Equity Follows The Law Explain

             Equity Follows The Law 

Introduction To The Maxim 

Equity is a law which is introduced to provide justice or appropriate remedy , if , apply any conservative law would cause injustice Or When Common law have no remedy for any wrong , the main  Purpose of  law and equity is to provide justice the ultimate object of both are to provide justice.   Equity law is not against  common law or any  procedure of common law it follows all the procedure and rule of common law it  only come into action  when there is some important circumstances disregarded by the common law rules that equity interferes. 

Meaning Of The Maxim 

Equity is not body of rules which is acting contrary to law but it is supplementary to the common law. 
In other words both have same object that is justice , when there is difference opinion  between common law and equity court then common law will prevail because equity is applied for adequate remedy .

The well known jurist Maitland has of the View 

We are not supposed to think of common law and equity as of two rival systems. Equity had come not to destroy the law , but to fulfill it, Every tittle of law was to be obeyed , but when all this had been get something might be needful , something that might be needful something that equity would require 


Equity is Supplementary To Common Law 


Equity is supplementary to law , it is understood in the following aspects 

Equity adopts and follows each and every rule of common law , in all cases where applicable 

Equity follow the analogies of law


Application And Cases Related To The Maxim 

                     Stickland Vs Aldrige 

At common law where a person intestate leaving sons and daughters  ,under the common law the eldest sons was entitled to the whole of the land to the exclusion of his younger brothers and sisters. This was undoubtedly unfair to the younger sons an daughters , While equity following the law granted them no relief , but this case is was held that if the son had induced his father not to make will  by agreeing to divide the estate with his brothers and sister after he had inherited it , the estate was decided in favour of the eldest son , who refused to make the conveyance , in that situation equity would have interfered and compelled him to carry out his promise , because it would have been against conscience to allow the son to have been against conscience to allow the son to keep the benefit of a legal estate . which he obtained by reason of his promise . This decision was held in Stickland VS Aldridge case 

Thus it could be concluded that equity does follow the law but does not allow an unfair use to be made of legal rights. 


Limitation Act  Section 18 is Based Upon This Principal 

Which Provided that if a person has not been able to exercise his right to file a suit within the period o limitation and his failure was due to the fact that the other person had fraudulently kept him an ignorance of his right then in that case limitation would commence from the date of his knowledge. 

Registration Act Section 50 Is Based On this Principal 

It provides that a registered deed will have priority over an unregistered deed relating to the same property. But equity makes an exception that in case of a subsequently registered instrument if the person in whose favour the subsequent registered instrument was made had notice of the previous unregistered instrument he will not have any priority 



Concluding Remarks 

To Conclude we would say equity is not come to destroy the law but it has come to assist the law to achieve its basic object of giving justice . 


Equity Follows The Law For Video Lecture

Section 20 and 21 of Transfer Of Property act 1882

When Unborn Person Acquires vested Interest On Transfer For his Benefit ?
  When an Interest is created for the benefit Of an Unborn Person

  He Will Acquire vested interest On His Birth

  Even Though the Possession is not Transfer to him immediately  on his birth according to the deed of transfer

  Or the deed imposed a condition that the unborn child would  get interest on the age of majority

What is Contingent interest 

When an interest is created in favour of a person with
a condition which is uncertain or the interest will be transfer on the happening  or not happening of an uncertain event is called contingent interest.

Salient Features Of Contingent  Interest 
 Contingent Interest is not vested but vest on happening of event  in Future
  The event is Uncertain
   to acquire such interest is depend on the future accident if such accident is not happened no right will be created
    when the Transferee  died before the happening of the event the transfer will fail
 
  Exceptions , When a condition is made that the interest will be transfer to the person upon attaining particular age is not contingent

Distinction Between Vested And Contingent Interest 
The Title of owner is perfect while in contingent interest it is not perfect and become perfect only on happening of uncertain event.

The interest is absolutely In vested interest   while  the contingent interest is conditional .


On the date of transfer it become effective while contingent interest only become effective on happening of uncertain event .

The vested interest is inheritable while contingent  is defeated on the death of the person if the uncertain event is not happened

The vested interest  can be transfer absolutely while the  contingent is transfer only with the uncertain condition

What is Vested Interest Section 19 Of Transfer Of Property Act 1882

What is Vested Interest  , Essential Of Section 19

When  Property is Transfer in favour of a person But not Expressly mention that when the person get whole interest in the property .
1 No Time is fixed for its taking effect OR
2    It is to take effect forthwith. Or
3   Or It is to take effect On happening of certain event which must happen .
4   It will be Vested Interest, However be defeated by the death of the Donor  before he obtain possession

its enjoyment is postponed
Prior interest is reserved to some other person
it is directed to be accumulated till the arrival of the time of enjoyment
or happening of a particular event, that to pass to another person


Essential Features Of Vested Interest

1 vested interest is unconditional
2 The vested Interest does not effect with the death of transforer
3  the vested interest create  absolute ownership in the property
4  the person can transfer and it can also inheritable

For Video Lecture 

2017 S C M R 1218 Supreme Court Of Pakistan

                  2017 S C M R 1218 


Introduction To The Judgement 

This Judgement has given by the supreme court of Pakistan which overruled the Decision of Lahore High Court, decided in 2016 . This judgement has elaborated the distinction between General law and special Law , It also Deal with the scope of general and special law.


Difference Between General And Special Law 

According to this judgement General law is one that was unrestricted in terms of its applicability to all issues covered by its subject matter, whereas special law may be restricted to certain Localities, persons or types of cases . Weather a law is general or special depended on the particular features of the statute in issue and was ultimately a question of relativity between tow or more statutes on the common subject matter . 

criminal procedure code 1898 and Pakistan penal code 1860 are both General law and would cede to any special law. 


When There IS Conflict between General and Special Law What would Prevail ?


According to the Judgement if there is conflict between General and special law than  the law, which is enacted  former would prevail over the later .


When There is Conflict Between General and Special Law in term of Punishment What would Prevail ?

According to the judgement , when two laws are providing different punishment for same offence than the law provide greater must relent in favour of the law giving the lesser punishment 


When there is Conflict Between two Special Laws containing overriding Effect  What would prevail  ?

According to the judgement When there are two special laws both having overriding effect , and they are coming against  one another, Ordinary the statute later in time would prevail over the statute prior in time , Moreover in order to determine which statute is to  prevail ,  the  judgement say that when any conflict arises between such statute then to deal with any such situation , the object of the statute the purpose and policy of the enactment and the intention to legislate such statute also be considered. 


Concluding Remarks 

To Conclude i would say that the judgement of supreme court of Pakistan has overruled the judgement of Lahore High court in explaining the difference and the overriding  effects of the statutes  over other 

Written By Adv Buzurg Shah Adel 

He Who Seeks Equity Must Do Equity Law Of Equity

He Who Seeks Equity Must Do Equity 


Introduction 


Equity courts are the courts of natural justice and fairness ,they expect that if someone is willing to enjoy the blessings of equity , then he should always be ready to return equity to others. In  a court of law , if a person comes to enforce a right and if he is legally entitled , the court will give relief in his favor  without imposing on him any duty , as the law must takes its course.

Meaning Of This Maxim, He who seeks equity must do equity 

According to this maxim to get equitable remedy from equity court the party must himself be ready to do equity, that is , a plaintiff recognize and submit to the right of his adversary , In other words the plaintiff must act fairly .

Application and Cases Related to this maxim 

This maxim apply in the following Cases 

Illegal Loans 

In sitting a side such case bargains the court would see that the money borrowed is repaid with interest .

Money Lender's  Act 1900

Under this Act it  is illegal and void to borrow money from man unregistered money lender.

Case Lodge Vs National Union Investment Co LTD

B borrowed money from M by mortgaging certain securities to him , M was a unregistered money lender the contract was illegal and therefore void , B sued M for return of the securities, the court refused to make an order except upon the terms that B should repay the money which had been advanced to him. 

Doctrine Of Election 

Where a donor A gives his property to B and in the same instrument purports to give B's property to C , B , Will be put to an election , either accept the benefit granted to him by the donor and give. away his own property to C, or retain his own property and refuse to accept the property of A condition . But B can not retain property and at same time take property of A,.

Consolidation of mortgages

In certain Cases a person who has become entitled to two mortgages made by the same mortgagor 

may consolidate the mortgages and refuse to permit the exercise of the equitable right to redeem one mortgage without the other. 

Notice To Redeem Mortgage 

A mortgagor who wishes to exercise his equitable right to redeem his mortgage must give his mortgage reasonable notice of his intention.

Equitable Estoppel 

Promissory estoppel arises where a party has expressly or implied , by his conduct or by negligence made  a statement of fact, or so conducted himself that another would reasonably understand that he made a promise thereon , then the party who made promise has to carry out his promise



Restitution of benefits on cancellation of transaction 

it is proper justice to return the benefits of a contract which was voidable and equity enforced this principles in cases where it granted relief of recession of a contract . A PARTY CAN NOT be allowed to take advantage of his own wrong .


Set Off


Where there have been mutual credits, mutual debts or other natural dealings between the debtor and any creditor, the sum due from one party is to be set off against any sum due from the other party , and only the balance of the account is to be claimed or paid on either side respectively.


Limitations

The demand for an equitable relief must arise from a suit that is pending.
 This maxim is applicable to a party who seeks an equitable relief .


Recognition Law In Pakistan And India 



Under section 19A of contract act , 1872 if a contract becomes voidable and the party who entered into the contract voids the contract, he has return the benefits of the contract.

Section 35 of TOPA embodies this principle of election.

Secftion 51 and 54 of the TOPA

In Order 8 rule 6th of the c.p.c, the doctrine of set off is recognized.



Concluding Remarks 



To conclude i would say that the plaintiff who seeks equity from the court of equity ; shall be entitled to it only when he give the defendant his equitable right.

He Who Seeks Equity Must Come With Clean Hand Maxims Of Equity Law

He Who Seeks Equity Must Come With Clean Hand Maxims Of Equity Law 

Introduction 

Equity courts are courts of fairness and natural justice every body who want justice according to natural justice or or want  remedy from equity courts , He should not be spotted with injustice illegality or any other unfair act, or  His Conduct must be Clean and clear . if it is proved before the court that the plaintiff has not come before the court with clean hands , So he will not be awarded damages .

Meaning Of This Maxim 

In Simple Words it can be explain as  , Do Good Have Good .

Explanation 

To apply this maxim the court believed that the conduct of the plaintiff was not against conscience before he came to the court

Application And Cases Relating to the Maxim 

In Highwaymen Case two robbers were partners in their own way . To disagreement in shares one of the them filed a suit against another for account of profits or robbery. courts of equity do grant relief in case of partnership , here was a case where the cause of action arose from an illegal act . So, the equity Court refused to grant remedy to the aggrieved party , this maxim can be seen in action while giving relief of the specific peformance of the contract , injunction etc.

Specific Performance of contract 



Equity will refuse specific perfromance of a contract while may be valid in law , if the plaintiff has been guilty of undue advantage .



Case Related to This Maxim 


CASE Overto  VS Banister


A minor benificary frudulently concealing her age induced her trustee, to pay her a sum of money which she was entitled to only on attaining the age of majority. Subsequently , she brought a suit against the trustee , to get from him what she had already got. it was held that her conduct dis entitled her in equity to recover any amount from the trustee, because she having misrepresented her age and had not come with clean hand

Exception to This Maxim 

If the transaction is against public policy , be exercised his jurisdiction even where the plaintiff was a party to illegality



This Equity is Applicable in Pakistan and India


This section deal with  section 17, 18, and 20 of specific relief act , 1877

Trust act section 23

Transfer of property act section 78

Contract act section 18


Concluding Remarks 


To Conclude we would say that any person who seek equity from equity court must come to the court with clean hands , his records in the transaction must be fair and clean




For video Lecture

Section 17 Of Transfer Of Property Act 1882 Direction Of Accumulation

Section 17 Of Transfer Of Property Act 1882 Direction Of Accumulation

Where the terms of a property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer then the life of the transferor , or a period of eighteen years from the date of the transfer , such direction shall , save as hereinafter provided , be void to the extent to which the period during which the accumulations is directed , exceeds the longer of the aforesaid periods, and at the end of such last mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.



Direction Of Accumulation

When The Property Is Transferred With Out Consideration Or By way Of Gift
When Property Is Transferred For Consideration but they party Agreed To Accumulate the income for certain period in the deed.

This Section is an exception Of Section 11

If The Property Is Transferred With out consideration then The Donor  Can Imposed a condition relating to accumulation of the income holly or partially , For a term not more then 18 years , Or till the Donor lives .

If It is for consideration then the Accumulation will be make according to contract .

For Example 

A transfers property to b in 1940 with the direction that the income arising out of the property is to be accumulated till 1970 , for 30 years , A Dies in 1965 . the period during which the transferor is alive is more than 18 years from the date of the transfer , but Being the longer of the two periods the direction is valid till 1965 , if , however , the transferor dies in 1950 , then the longer period would be 18 years and accordingly the direction would remain valid till 1958




There are Further Exception to this Rule ,

 if the transfer is made without consideration and for
the following purpose
For the payment of the debt of the Donor  or any interest holder.
For The maintenance of his child or child of any other person who have interest over there
For the protection and maintenance of the property
are valid conditions

For Video Lecture 

Equity Will Not Suffer A Wrong Without A Remedy Maxim Of Equity Law

Equity Will Not Suffer A Wrong Without A Remedy Maxim Of Equity Law 

Introduction Of The Maxim 

This maxim is also Known as Ubi Jus Ibi Remedium . or it is also known as No Wrong without a remedy . In Common law Only those wrong were considers wrong which were specifically mentioned in the common law to be wrong . if a plaintiff suit was not covered by those writs , it was liable to be dismissed the hardship of the common law courts , Compelled the King to introduce chancellor court to deal with such Cases which were not the subject matter of Common law courts . The Chancellor court introduce some principal on the basis of which the cases were decided which are twelve in number and the Equity will not suffer a wrong without a remedy is one of them .



Meaning Of This Maxim 

Whenever a right has been infringed a remedy will be given

What is meant by a Wrong 
The infringement of a legal right
What is a Legal right 
 A Claim  which is recognized by law


Ubi Jus ibi Remedum 

Where there is a wrong there must be Remedy ,

FOR Example 

A make B Trusty and transfer property to B and make Z beneficiary , B, Commit breach of trust and use the property to his own benefit  Z, had no remedy in the common law court , but in court of equity  Z Get the interest of the property on the basis of this maxim

Case Related To This Maxim 

Ashby Vs   White Case 

Ashby was Voter                            Plaintiff 
White  was Presiding Officer         Defendant 

In this case Ashby is a qualified vote and entitled to cost his vote for two Candidates at parliamentary election held in 1701 , the defendant prevented the plaintiff to cost his vote with out law full justification ,and to whom plaintiff was going to vote win election , without plaintiff vote the plaintiff  take action against White for injury , done to him by white with out lawful justification ,  the equity court decided the case by arguing that the right to vote aws given to Ashby by common law which is denied by the White with out lawful reason ,Although plaintff has suffered no actual loss , But still court had held that plaintiff legal right to vote has been violated and awarded him damages .

This Maxim is the source of entire Equity Jurisdiction 

The Equity has the following Jurisdictions
Exclusive Jurisdiction


1  where the court has the power  to deal a case to the exclusion of all other courts the  , Or When a Case is of such nature that no law covered it at the time .

2 when the existing law is apparently unjust if applied , would be unjust to any party of the case . 


3 When a Social Condition is so changed and law has become so conservative if , applied would be unjust to any party


Moreover , The Equity court  can only intervene to a case , which is not the subject matter of common law . or the common law provide incomplete or inadequate remedy  to the aggrieved party . 

There are some limitation on the use of this maxim , Which are Following 


The Equity court can not intervene when there is breach of moral right

The Equity Court can not intervene when the case is coming with in the jurisdiction of common law .

The Equity court also provided no relief to a party who himself has destroyed or lost he evidence or who waived his right by his negligence act .

This Maxim is also applicable in Pakistan And India , Which are incorporated in the following act , 

Trust act
The Code Of Civil Procedure Section 9
Specific Relief Act


In Pakistan and India the high court and supreme court act as equity courts there are no Saperate equity courts , Like U.K


Concluding Remarks 

To Conclude on the above detailed we would say that this maxim applicable in all cases where there is an infringement of legal right and actual damages not necessary for taking action .

Introduction To Law Of Equity How Law Of Equity Developed Historical Background Of Equity

Introduction To Law Of Equity How Law Of Equity Developed 


Historical Background Of Equity Law

Before 16th Century There were Only Common Law Courts People were only get Relief On the basis of common law if there were no remedy the people of England not get any relief , When the writ or suit was  set aside in common law court then the the party can go in review to the King . During 16th century , Many review Petition were filed with the king , the King was not supposed to deal with such numbers of petition so he delegate the power to the court of chancery , the court of chancery started dealing with such Petitions , since the chancery court is established to deal with equity cases .


Maxims Of Equity 

These are the ordinary legal principles that have been adopted through precedent in regard to equity . These maxims are the body of law that have developed in relation to equity and these help to govern the way equity operates . All  the maxims are discretionary to nature and courts may choose weather they wish to apply these principles


Following are the Maxims 

1  No Wrong With out Remedy Or Equity Will Not Suffer a wrong to be with out a Remedy or Ubi Jus Ibi Remedium

2  He Who Seek Equity Must Come With Clean Hand   Or Do Good Have Good

3  He Who seeks Equity Must Do Equity

4  Equity Follows The Law

5  Where equities are equal, The First In time shall prevail

6  Where there are equal equities , the law shall prevail

7  Delay Defeat Equity

8  Equity looks to the intent rather then to the form

9  Equity imputes an intention to full fill an obligation

10  Equity acts in personam

11 Equity Is Equity

12 Equity regards That as done which ought to have been done .

Assignment On Unpaid Seller With Cases

Unpaid Seller:
                                                                     Section 45 of sale of goods act 1930 defines unpaid seller.
An unpaid seller according to this section is a person to whom the whole price has not been paid or bill of exchange or such other negotiable instrument given to him has been dishonoured.
It also declares that any person who is in the position of a seller like agent is also considered seller
Features of unpaid seller:
Following are the features of unpaid seller
He must sells the goods on cash basis and must be unpaid.
He must be unpaid either wholly or partly.
If the price has been paid through a bill of exchange or other negotiable instrument,the same must be dishonoured.
He must not refuse to accept the payment when tendered.
Relevant cases:
In Pawan hans helicopters Ltd v Aes Aerospace Ltd the court decided that the petitoner is an unpaid seller  because he has not recieved the agreed sale price.Clearly the petitioner is an unpaid seller within the meaning of section 45.
2in .Mewar textiles Mills Ltd.v Sita Ram Basanti Bai Jain the court rejected the plea that agent can’t exercise his right of lien.The court decided that according to sub sec(2) of section 45 seller includes any person who is in the position of a seller it also includes agent so he may exercise his right of lien.
3.Mrs Preeti A lotlikar V Auspicio Rodrigues..
Rights of unpaid seller:
                                            The rights available to unpaid seller inevitably depends on weather the unpaid seller is a seller under sale or an agreement to sale.
Rights of unpaid seller in a sale:
                                                                                                                                                         The rights of unpaid seller has been clearly elaborated under section 46(1) of the act.An unpaid seller of goods,in a sale,by implication  of law has the following rights available to him,
1.Right of lien
2.Right to stoppage in transit
3.Right of resale.
Now i am going to discuss them one by one.
Right of lien:
                        Sections 47 to 49 provides for right of lien.
Meaning of lien;
                                Lien is the right to retain the possession and refuse to deliver them to the buyer until the price due in respect of them is paid to the buyer.
Circumstances under which right of lien can be exercised;
                         According to sub sec (1) of the section 47 Following are the three circumstances under which right of lien can be exercised.
1.where the goods has been sold without any stipulation to credit.
2.where the goods has been sold on credit,but the term of the credit has expired.
3.where the buyer becomes insolvent.
Other provisions regarding to lien;
According to sub sec (2) of the sec 47 the seller may exercise his right of lien even he possesses the goods as agent or bailee for buyer.
According to sec 48 where an unpaid seller has made part delivery of goods,he can exercise lien on the reminder.
According to sec 49(2) the seller may exercise his right of lien even though he has obtained a decree for a price of the goods.
Relevant case:R.K.Abdul Rahiman sahib and co V Express newspaper Ltd,the court in this case decided that lien in favor of seller applies to the cases where the properties in the goods have passed to the buyer,for a seller can’t be said to have a lien over his own goods.He can have a lien only on the goods which have become the buyer’s property.
2.Balaji paper agency V Mysore paper and Board Co.
In this case the court decided that the unpaid seller’s lien continues even after passing of the goods to purchser ,as long as the unpaid seller continues to remain in actual possesion of the goods sold.
Circumstances under which the unpaid seller loses his right of lien;
1.According to sec 49(1)(a) when then seller delivers the goids to carrier or other bailee for the purpose of trsnsmission to the buyer without reserving the right of disposal of goods the seller loses his right of lien

2.According to sec 49(1)(b) when the buyer or his agent lawfully obtains possession of the goods the seller loses his right of lien.
3.According to sec 49(1)(c) when the seller waives his right of lien.
4.According to sec 53(1) where the buyer disposes of the goods to third person with the consent of seller.
Relevant case Eduljee vs John Bros
                            Edluljee sold and delivered a refrigerator to John bros.It was not functikning properly John delivered it back to Edulijee.It was held that Eduljee could not exercise his lien over the refrigerstor. 
Right to stoppage in transit;
                                                    The right of the stppage of the goods mesns the right of stopping the goods while they are in trsnsit,to regain possession and to retsin them till the full price is made.
    The goods are said to be in transit from the time when the goods are delivered to a carrier or other bailee for the purpose of transmission to the buyer until the goods are recived  by buyer or his agent.when the goods are recieved by buyer or his agent on his behalf then the goods are no more in transit. 
          According to section 50 of sale of goods act 1930 the unpaid seller can exercises his right to stoppage in transit if the following conditions are satisfied.
The seller must be unpaid.
2.The goods must be in transit.The possession of the goods must be with an independent carrier.
3.The buyer become insolvent in the meantime.
If the goods reached the destination the he can’t exercise the right of stoppage in transit.
Example:-Henry sells 50 chairs to Smith.Henry delivers the chairs to a carrier for the purpose of transmission to Smith.Henry gets news that Smith has become insolvent.Henry can stop delivery.
Duration of transit;
                                    According to sec 51(1) the goods are said to be in trsnsit from the time when the goods are delivered to to carrier or to a bailee to carry them to the buyer until the delivery has been taken by buyer or his agent.
The goods are in transit,even if the buyer asks the carrier to take them to some other destination until they are delivered to the buyer at some other destination.
According to sec51(4) If the goods are rejected by the buyer and the goods are in the possession of the carrier,the transit is not at end,even if the seller has refused to take them back.
When the delivery has been taken from the carrier or bailee by buyer or his agent the goods are no more in transit.
In Hindusthan Lever limited and another Vs The Collector and District magistrate,sundargarh goods were entrusted to the transporter,before it reached the consignee the vanaspati ghee was seized by the marketing inspector.The consigee issued instruction of “stop payment” and the cheque given by him towards sale was dishonoured.The court decided that the company having not recieved the consideration it continued to be the owner of the goods under section45(1) and remained the owner of the goods according to section 51 of sale of goods act 1930.
Seller right of stoppage in transit ceases in following cases;
1.when the buyer or his agent obtains the delivery of goods before or after the goods have been reached at the destination.
2.where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent.
3.when some of the goods have been delivered to the buyer or his agent under the circumstances which show that there is an agreement to give up possession of the whole of the goods.
4.when goods have been resold by the buyer with the consent of the seller.
How stoppage in transit is effected;
                                                                   According to section 52 the unpaid seller may exercise the right of stoppage in transit is exercised either
1.By taking actual possession of the goods, or
2.By giving notice of his claim to the carrier who holds the goods.
When such notice has been given to carrier or bailee he shall redeliver goods to,or according to the direction of the seller and the expenses of re-delivery shall be borne by seller.
In Classic Furniture manufacturing Co.Pvt .Ltd. Vs Dhl Lemiur Logistics Pvt Ltd and ors.   The court decided that the respondent was acting as a carrier and unless the freight charges and shipment charges of the respondent were not paid the respondent in terms of sec52(3) of soga 1930 had a lien over the goods booked.
Right of Resale;
                              In case of sale the seller has the right of resale accoring to sec 46(1)(a).
According to sec 54 an unpaid seller can resell the goods under the following circumstances.
In case where the goods are of perishable nature,the unpaid seller can resale the goods if following conditions are satisfied.
1.buyer fails to pay the money within reasonable time.
2.The seller is not required to give notice of resale to buyer.
In case if the goods are not perishable,the unpaid seller can resale the goods if the following conditions are satisfied.
1.seller has exercised his right of lien or stoppage of goods in transit.
2.Seller has given notice to buyer to pay the price within reasonable time and the buyer fails to pay the price.
The seller may recover from the original buyer damages for any loss occasioned by his breach of contract but the buyer shall not be entitled to any profit which may occur on the resale.
If notice is not given to buyer the unpaid seller shall not be entitled to recover such damages and the buyer shall not be entitled to thr profit,if any , on the resale.
In Kalka prasad Ram Charan V Harish Chandra the seller delivered 10 thans of silk out of 67.The buyer rejected the remaining delivery.The seller sold off the remaining.But due to a governmemt control order the sale fetched a price considerably less than what had been agreed between the two.The seller brought a claim to recover damages.The court decided that seller can’t claim the damages under sec 54(2) of soga because he has not given notice to buyer.
2.In kirorimal Kashiram Vs. BR Venkatachalapathy chettiar. The court decided that the right provided under sec 54(2) can only be exercised if the property in the goods has to pass to buyer.
3.In Bala Dat Vs. The union of india and ors. Court decided that under sec 54 if the seller gives notice of resale and resells the goods then difference between the original sale price and the price obtained after the resale is to recovered as damages for the loss occasioned by the breach of contract.

Rights of unpaid seller in case of agreement to sale;
Right to withhold delivery of goods;
Meaning;
                                          It means seller refuses to deliver goods to buyer.
     According to sec 46(2) where the property has not been passed to the buyer,the unpaid seller,can’t exercise right of lien,but get a right of withholding the delivery of goods ,similar to and co extensive with lien and stoppage in transit where the property has passed to the buyer. 
Conditions for withholding right;
                                                             The following conditions must be satisfied to exercise right to withhold the delivery of goods.
1.Seller must be unpaid seller.
2.Ownership of the goods has not been passed. 
It is pertinent to highlight that the “other remedies” mentioned under sec 46(2) of the act,have been understood to mean the remedies set out in Chpt 6 (suit for breach of contract) of the act... Firm Bachhraj Amolakchand V Firm Khupchand Nasrigdas and others.
Rights of unpaid Seller against buyer
                                                                     Following are the rights of unpaid seller against the buyer.
1.Suit for price; 
                             Sub sec (1) of sec 55 that where the property in goods has been passed to the buyer and the buyer wrongfully refuses or neglets to pay the price according to the terms of the contract the seller may sue him for the price of goods.
In Penguin Books Ltd V Boom Sales Company  the court pointed that im order to syue the buyer under sec 55(1) the following conditions must be satisfied
1.The property in goods has been passed to the buyer.
2.The property has passed under the contract of sale.
3.The buyer hss wrongfully negleted or refused to pay the price ,and
4.The price has become payable under the terms of the contract, are fulfilled.
In Sh.Devender Kumar Vs Mission Jan Jagriti blood Banks the defendant admitted the supply of goods in terms of invoice Ex.PW1/1.  The non payment of the value of goods is also been admittted by the defendant.Therefore by the virtue of sec 55 plaintiff being unpaid seller is having right to sue and recover the price of goods delivered to the defendant.
According to sec 55(2) if the property in goods has not been passed to the buyer,the unpaid seller may sue the buyer for the price if he wronfully neglets or refuses to pay the price.
The seller has to sue the buyer for the entire amount and not for the amount that according to him remains due to him after deducting the price fetched by the goods sold.   
In Vithaldas Vishram Vs Jagjivan Gordhandas the plaintiff brought a suit to recover the sum of money Rs 3750 which was payable by defendant on 31 june 1937 even though the property in goods was not passed to the buyer.The court decided the case in favor of plaintiff under sec 55(2).
2.Suit for damages;
                                     According to sec 56 where the buyer wrongfully neglets or refuses to accept and pay for the goods,the seller may sue him for damages for non performance.
The damages would be measured by the rule contained in sec 73 of contract act
The measure of the damages for the non acceptance is the estimated loss directly and naturally resulting in the ordinary court of event from the buyers breach of contract.Where there is an available market rate for the goods in question the proper measure of damages, prima facie,is to be ascertained by the difference b/w the contract price and the market price at the time of breach.If however,the market rate on the date of breach of the contract is not available, it is open to them to produce evidence regarding identity with a view to awarding proper damages.(T.R.Balakrishnan Vs State of Kerala)
3.suit for damages for breach;
Repudiation of the contract before due date;
                                                                                   When the buyer repudiates the contract before the date of delivery the seller may treat the contract as resind and sue for the damages for the breach.
The buyer is authorised under sec 60 either to threat the contract as subsisting and wait rill date of delivery or to resind it and sue for the damages when the other side repudiates the contract before delivery.Premier Auto Industries And others Vs Bharat Raj Royal Goyal and others.
Suit for interests;
                                 According to section 61(2)(d) when there is a specific agreement between the seller and buyer as to interest on price of goods from the date on which payment becomes due the seller may recover the interest from the buyer.

Section 11 Of transfer OF Property Act 1882 Restriction Repugnant To Interest Created

Restriction Repugnant to Interest Created 

Section 11 OF Transfer Of Property Act  1882

When a Transfer IS Made In favor of any person in form of mortgage lease , exchange or sale , No Condition can be add which give any Direction to the Reciver of the Property to enjoy such property in a Particual Manner , Such a Direction is in Invalid , the buyer , lessee or any other person can ignore such a Condition becuse the condition is void ; and the transferee can not sue the transferee for the breach of such Condition. But there is an Execption ,  



A Transferer may add a condition in the contract Which is for the Benifit of the sellor Property


 For Example , A Give his House For Tenent an put a condition that the House should not be Used for animal Carring Example No 2 , A Sellor put a conditon while selling his property that the Buyer shall not construct third floor on the building.



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Right of Unpaid Seller With Relevant Cases PDF

Right of Unpaid Seller With Relevant Cases

Section 4 Of Transfer Of Property Act 1882

Section 4 Of Transfer Of Property Act 1882 


According to this act , the provision which  deal with agreement shall be part of contract act 1872 and section 54 clause 2 section 59 clause 3 ,section 107 , and 123 shall be a part of Registration act






Video Lecture

Section 3 Of Transfer Of Property Act 1882 Interpretation Clause

Section 3 Of Transfer Of Property act 1882 Interpretation Clause  

Introductory Remarks 
In Every Act there are Some Clauses which Are Known as Interpretation Clause , In this act there are certain words which are explained and limited to this act 

What Is Immovable Property 

This Act has defined says that Except Gross Wood and Crop Every thing Come in the definition of Immovable property , Usually a thing is said to be immovable property as long as it is attached to the earth , as soon as it is removed from the earth it become movable property , Moreover T.P.A. deal with immovable property .

What Is Meant By Instrument Under T.P.A

According to Transfer Of Property Act 1882 Instrument Means every Instrument which is Created by a living person to a Living Person , In short the instrument which is not will nor inheritance is Instrument under T.P.A.

What Is Meant By Attested 


According to Transfer Of Property act , Every Instrument which is signed by two witnesses other then the parties , Moreover it is not necessary that the witnesses at a time have signed the instrument. Nor the presentment of the writer is Necessary .

Attached To The Earth 

It is Related to immovable Property , For example , 
1 Everything it has root in earth
2 Everything which is constructed on earth
3 Attached to anything which has root in land
i.e . Plant , Bulding , etc.

What Is Actionable Claim 


Everything Which is claimed in the court of law , for Example
Unsecure Debt , Unpaid Salary etc.

What Is Notice 

To Inform a person , are to bring a thing to the knowledge of a person , there are different kinds of notice ,

Express Notice  , A Notice to a person directly
Constructive Notice , when a notice is served to a person properly but the person refuse to accept the notice is known as constructive notice

Imputed Notice 

, A Notice to a person through his agent or when a principal delegated his power to his agent and and notice is served to such agent is known as imputed notice

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Section 02 Of Transfer Of Property Act 1882

Section 2 Of Transfer of Property Act 1882


Introduction 

The Section 02 of transfer of property act 1882  save certain enactments  repeal certain  acts and also deal  with rights and liabilities .

when this act is extended to any area  of a province by  provincial govt shall  revoke  the laws previously contain in the schedule. but this act can not affect  the following ,

Section 02 of transfer of property act 1882 can not Revoked the Following Laws



01     Any Contract or Figuration Of Property which is not contrary to this act

02     Any  Contract or Figuration of Property which is not contrary to this act and which is not inconsistent to any law of the time being enforce

03     Any Right and liability which  arises from any law or custom  for the time being enforce ; shall not effect from the act of Transfer of property act 1882

04     Any Alienation or transaction which is made according to any law or by the degree of court ; shall not effect from the act  of  transfer of property act 1882
         

Concluding Remarks 


Like any other act the transfer of property act 1882 also save certain enactment , right and liabilities, at the same time this act repeal many acts , which are inconsistent with this act.




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Section One Of Transfer Of Property act 1882

Introduction 

   Section One Of Transfer Of Property act 1882 define the act its commencement the object and Scope of the act , the territorial extent of the act and it extension . Following are the few Feature of the Section No 1 Of Transfer Of Property act .


Important Feature Of Section 1 Of Transfer Of Property Act 1882



Short Title

The act Shall be called Transfer Of Property act 1882,

Commencement Of the Act ,


This act shall be enforced after one July 1882, Moreover the Provincial Govt has the absolute power to enforce the act on any part of his territorial jurisdiction and the provincial govt can also removed the act or any part from his province ;or any part of the province .

The Main Object Of Bringing this act 

there are many reason behind the enactment , The main reason was the limited alienation of the property between the people the people of sub continent transfer their property in few traditional way like gift , Will , inheritance sale , etc. these were the very limited mode of alienating property, So there was need reform , when the British came they feel ;and bring the act.


Object And Scope Of The Act 

The main object of the act was to explain that how to transfer the property according to Law,  it is limited act , which do not covered the area where any court has decided regarding any  any alienation of  property , Such as , in case of Insolvency , In Case Of Inheritance , or Will, e.t.c,


Territorial Extent Of the Act 


The act is not Extended to Whole of Pakistan , The Provincial Govt has discretionary Power to enforce the act or any part of the act in whole of the province or any district or any part of the province or to the Provincial administrated area such as Chitral , Swat , Bannu , Bunir , Dir Etc.




More over the act does not covered each and every part of the law relating the property , the courts  have the power to decide the cases according to the act , if the act does not covered then the court are supposed to decide the Case according to Natural law or the law of equity .




Concluding Remarks 


The  Section one of T.P.A. define the act , discuss  its jurisdiction , its objects , it scope and extent.





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