508 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
notifications under Sections 4 and 5 of the Foreign Jurisdiction and Extradition Act, 1879, and the Indian (Foreign Jurisdiction) Order in Council, 1902.
§ CAPACITY TO GIVE OR TAKE A MORTGAGE
- A mortgage is a transfer of property and also a contract. It must therefore satisfy the requirements as to capacity laid down for a valid transfer of property and for a valid contract.
§ REQUIREMENTS AS TO CAPACITY FOR A VALID TRANSFER OF PROPERTY
Transfer of property means an act by which a living person conveys property to one or more other living persons or to himself or to himself and one or more other living persons—Section 5.
A mortgage being an act of transfer of property, the parties to an act must be living persons.
When it is said that both persons must be living it is obvious that the intention is to make two distinctions :—
(i) Between a transfer inter vivos and a will.
(ii) Between a transfer and the creation of an interest (Sections
13,14, 16 and 20).
A will operates from the death of the testator. A mortgage therefore cannot be created by a will. It must be created inter vivos. A will does not operate as a transaction between two living persons.
A mortgage is a transfer of an interest. Sections 13, 14,
16—20 permit that an interest may be created in favour of a person not in existence at the date of transfer. But a mortgage is not the creation of an interest, but it is the transfer of an interest.
§ Living.
- What is the meaning of the word Living ? Does it mean one who has not suffered natural death or does it mean that a person has not suffered civil death ? There may be no natural death although there may be civil death.