310 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
(5) Incumbrance —
(i) Incumbrance means—a claim, lien, or liability attached to the property.
(ii) The seller’s duty is to discharge all incumbrances. It is immaterial that the buyer was aware of the incumbrances when he contracted to buy.
(iii) The sale is not subject to incumbrances, unless there is an express provision to that effect.
(iv) If the incumbrance is a common charge on the property sold and other properties of the seller, the buyer may insist on its being discharged out of the other property.
(6) This liability imposed upon the seller is collateral to the contract and may be enforced even after conveyance.
Seller’s Liabilities
II. A FTER CONVEYANCE
1. Section 55(1)(b) — To give possession
It is the duty of the seller to give possession after conveyance and not to leave the buyer to get possession for himself.
This liability may be enforced by a suit for Specific Performance.
Time for giving possession—
(i) The Section docs not say when the seller should give possession.
(ii) Reference to Section 55 (4) (a) shows that possession be given when ownership passes to the buyer. This would be at the time of the execution of the sale-deed— 6 Lah. 308.
(iii) The seller cannot refuse possession because price has not been paid unless there was intention to the contrary.
(iv) The buyer’s right to possession and the seller’s right to unpaid price may be enforced in the same suit.
- Nature of Possession—
(i) Possession docs not mean actual occupation.
(ii) Physical possession in the case of tangible and symbolical possession in the case of intangible property is enough.
(iii) Symbolical possession is enough in the case of property which is in the possession of tenants or mortgagees.