Transfer Of Property Act, 1882

 

Transfer Of
Property Act, 1882

 

Section—3

Attestation
of a document

Mere
attestation of a document by a person does not mean that he had knowledge about
the contents of the document and as such he is not bound by the transaction.

Amanatullah
and others Vs Au Mohammad Bhuiyan and another, 17 BLD (AD) 199.

 

Section—6

Notice
determining tenancy

In
the absence of any agreement between the landlord and the tenant a 15 days’
notice determining the tenancy is required. But if the tenant denies title of
the landlord in the suit premises, the necessity of serving any notice upon him
under Section 106 of the T.P. Act is waived.

In
the original tenancy there was a provision for giving one month’s notice for
determination of the tenancy. But with the change of ownership and attornment
this position changed. Since no period for notice was fixed in the new tenancy,
the tenant cannot invoke the plea of one month’s notice stipulated in the
original tenancy. Moreover, the tenant started a new partnership firm under the
name and style: “MIs. Greenland and Company’ and the landlord issued rent
receipts in favour of the company. This clearly shows that a fresh tenancy was
created and the original contract was no longer in force.

Even
if there is an agreement between the landlord and tenant providing for 30 days
notice for terminating tenancy and the notice served on the tenant falls short
of 30 days but the suit for ejectment is filed after one month of service of
notice under Section 106 of the T.P.Act, the notice will be regarded as a valid
and sufficient one.

Alhaj Md.
Solaiman Vs. Sufla Akhtar Alam being dead her heirs Narjesa Rahamatullah and
others, 16 BLD (HCD) 304.

Ref:
AIR 1971 (Rajasthan) 55; PLD 1956 (Lahore) 261; 1982 SCMR, 1056—Cited.

 

Section—41

Evidence
Act, 1872(1 of 1872), Section—115

Section
41 of the T.P. Act is an exception to ordinary rule that the transferor cannot
convey a greater till to the transferee than he himself has and has to be
construed strictly. If anyone seeks protection purportedly either under section
41 of the T.P. Act or under Section 115 of the Evidence Act, he must prove the
facts entitling him the benefits under either of the laws. He is required to
prove that he, after taking reasonable care to ascertain that the transferor
had power to make the transfer, acted in good faith.

Wahidha
Begum Vs Tajul Islam, 20 BLD (HCD) 431.

 

Section—43

Feeding the
grant by estoppel

The
essential requirements for application of the provision of this section are :
(a) erroneous or  fraudulent
representation by a person having no title or having imperfect title to certain
immovable property that he was authorised to transfer such property; (b) actual
transfer of the said property by him for a reconsideration and (c) subsequent
acquisition of tille or interest by the said person in the said property. On
fulfillment of these conditions the transfer made by the unauthorised person
would operate on the title or interest which has subsequently been acquired by
the said person at the option of the transferee.

Abdul
Motalib alias Motalib Vs. Yusuf Au Munshi alias Isab Ali, 14 BLD (HCD) 533.

Ref:
Abu Saber Aziz Mohammad and others Vs. Government of Bangladesh and others, 31
DLR (AD) 218; A.l.R. 1936 (Peshwar) 103—Cited.

 

Section—43

It
provides that a transfer by an unauthorised person, who subsequently acquires
interest in the property transferred, fraudulently or erroneously representing
that he is authorised to transfer certain immovable property and professing to
transfer such property for consideration, such transfer shall, at the option of
the transferee, operate on any interest which the transferor may acquire in
such property at any time during the subsistence of the contract for transfer.

Thus
although an agreement to transfer the right of an heir apparent or spes
succession is invalid and unenforceable under the law, conveyance of an estate
by an heir apparent on contingent remains dormant for valuable consideration to
a purchaser is not void. If the state expectant subsequently acquires title in
the property, he is bound to make good the sale and the Court will compel him
to carry out the agreement by way of a legal conveyance.

Khatibun
Nahar and others Vs. Syed Hafizullah and others, 15 BLD (HCD) 565.



Section—52

Doctrine of
lis  pendens

Transfer of
property pending suit relating thereto

The
doctrine of liss pendens under Section 52 of T.P.Act is applicable to
pre-emption proceedings and as such any reconveyance made during the pendency
of the preemption case is hit by Section 52 of the T.P. Act.

Khorshed Au
and another Vs. Aftabuddin and others, 16 BLD(HCD) 1

Ref:
37 DLR 324 ; 29DLR 153 ; 1 BCR (AD) 170; 29DLR 229; 1 BCR 27 ; 35 DLR (AD)
along with AIR. 1958 (SC) 838 ; I.L.R. 7 (All) 775; 18 DLR 317 ; 19DLR 677; 33
DLR(AD) 323; 35 DLR (AD) 225—Cited.

 

Section—54

Adverse
Possession

Receipt
is not a deed of title and cannot therefore, confer title to the plaintiff
under section 54 of Transfer of Property Act. But uninterrupted adverse and
hostile possession over a period of 12 years confers title upon the plaintiff.
Courts below on misreading evidence on record and on misconception of law
wrongly held that elements constituting adverse possession are lacking in the
instant case.

Sree
Santipada Datta being dead his heirs: Aranangshu Datta and others. v. Satish
Chandra Das and others, 22 BLD (AD) 246.

Ref:
Mir Laik Au Vs. Standard Vacum Oil Co., 16 DLR SC 287; Abdul Jalil Miah Vs.
Niropama Ritchil, 49 DLR(AD)61; Abdul Kader Vs. Noor Mohammad 36 DLR (AD) 261;
Fjaz Ali Qidwai Vs. Special Manager, Court of Wards, Bulrampur Estate AIR 1935
P.C. 53; Hafiz Mohammad Fatch Nasib Vs. Sir Swarup Chandra Hukum Chand (1947052
C.W.N. 382; Mozher Sowdagar Vs. Z. Alam 
40 DLR AD 62.

 

Section— 60

Right of
redemption of a mortgage

When
a deed of mortgage is out and out a sale deed with a condition of re-purchase
and subsequently the mortgagor accepts some money from the mortgagee and
relinquishes his right of re-purchase/redemption, the subsequent deal takes
place as a separate transaction between the contending parties and it has the
effect of redemption of mortgage.

Tafzal Ahmed
Contractor Vs. Abdur Rahim and others, 16 BLD (AD) 160.

 

Section—105

Heritability
of monthly tenancy

When
the petitioners kept the issue on heritability of monthly tenancy alive and the
transaction is not past and closed, the Court is competent to take note of the
latest decision on the subject.

Md. Enayet
Mowla and others Vs. Md. Abdul Karim Biswas, 13 BLD (HCD) 351.

Ref:
Abdus Sattar Vs. Suresh Chandra, 32 DLR(AD)170; 1983 BLD(AD)37, 1983 BLD
(HD)274; 1989 BLD(HD)162; Prodip Das vs. Kazal Das, 44DLR (AD)!; Sharifa Khatun
Vs. Md. Yusuf, 44 DLR(AD) 185- Cited.

 

Sections—105
and 106

Lease
of immovable property is created under Section 105 of the Transfer of Property
Act and, as such, statutory notice must be given under Section 106 of the Act
for termination of the tenancy. Without serving a notice. upon the tenant as
contemplated by Section 106 of the T,P. Act, no suit for ejectment of a monthly
tenant can be filed.

Abdul Aziz
Vs. Md. Abdul Majid, 14 BLD (AD) 147.

 

Section—105

The
defendants could not be evicted on the ground that the relationship of landlord
and tenant had ceased with the death of the defendants predecessor and the
tenancy was not heritable. There being no legal and valid ground for the
eviction of the defendants, the suit must fail.

Subash
Chandra Talukdar and others Vs Abdul Sattar Chowdhury being dead his heirs:
Ambia Khatun and others, 19 BLD (AD)17

Ref:
44 DLR(AD)1—relied upon; 38 DLR(AD)97; 32 DLR(AD)170—Cited.

 

Section—106 Holding
over

It
means retaining possession in a demised premises. It does not necessarily
create any tenancy after the expiry of the stipulated lease period. The common
law rule is that if a lessee remains in possession after the expiry of the
terms, he is a tenant by sufferance. There is, of course, a distinction between
a tenant continuing in possession after the determination of the tenancy with
the consent of the landlord and a tenant remaining in possession without the
landlord’s consent. The former is called a tenant holding over or a tenant at
will and the latter is called a tenant by sufferance’.

Md. Mokbul
Hossain Khondker Vs. Mosammat Jaheda Khatoon, 14 BLD (HCD) 549.

Ref: Siddique
Au Vs. Nurunnessa Khatun and others, 43 DLR (AD) 3; Nukul Das Mridha Vs.
Bangladesh and others, 6 BLD (HCD) 331; Azizur Rahman and others Vs. Abdus
Sukur and others, 36 DLR (AD) 195; Khitish Chandra Mondal Vs. Shiba Rani Debi
and others; AIR. 1950 (Cal) 441; Jiwa Lal and Co. Ltd. Vs. Manat and Co. Ltd.
64 C. W. N. 932; National Carriers Ltd. Vs. Panalpina (Northern) Ltd; (1981) 2
W. L. R. 45; Abdul Khaleque Mia Vs. Maya Bibi and others, 35 DLR (AD) 310;
Kesho Vs. Goyal and Company, A.1. R. 1938 (Lahore) 95; R. Vs. Judge of Essex
County  Court, (1887) 18 Q. B. D. 704; A.
K. M. Ruhul Amin Vs. District Judge and Election Tribunal, Bhola and others; 38 DLR (AD) 172—Cited.

 

Section—106

The
petitioner having continued as a tenant in the remaining part of the demised
premises after demolition of the front portion he will be deemed to be a tenant
of whatever portion he occupies and there can be no manner of making the notice
ineffective because of changes in the size of the demised premises. Also it
cannot be said that because of demolition of two-third of the tenancy there was
no tenancy at all.

Sree Mukti
Pada Shil Vs Golam Mohammad, 19 BLD (AD) 124.

 

Section—106

Notice
terminating tenancy

When
a tenant denies the title of the landlord in the demised premises without any
valid reason it operates as a forfeiture of his tenancy right and in such a
case a notice under section 106 of the T.P. Act may be dispensed with.

Alhaj Md.
Solaiman Vs. Mrs. Sufia Akhtar Alam being dead her heirs: Narjesa Rahamatullah
and others, 16 BLD (AD) 47.

Ref:
Muhammad Islam Khan Vs. Cantonment Board, 1982 Supreme Court Monthly Review
1956—Cited.

 

Section—106

A
notice served upon a tenant with more than 30 days as contemplated by the
agreement between the parties does not in any way prejudice the petitioner or
suffer from any illegality or infirmity in the service of notice determining
the tenancy and is in consonance with the terms of the agreement and the
provision of law, inspite of the fact that the payment of rent was according to
the English calendar month and only 15 days notice is re quired for
determination and termination of the tenancy under the provision of the section
106 Transfer of Property Act.

Santosh
Kumar Das v. Hajee Badiur Rahman, 22 BLD (AD) 30.

Section—108

Rights and
liabilities of lessor and lessee

After
a deed of lease has been executed and registered between the parties for 99
years in respect of the case land and delivery of possession has been given to
the petitioner, the lease-hold right being admittedly heritable and
transferable, the Government cannot cancel the allotment order without
cancelling the lease deed as the petitioners right in the land finally accrued
on the lease deed.

Government
of Bangladesh, represented by the Secretary, Ministry of Works and others Vs.
MIs. Eastern Industries (B. D.) Ltd, 14 BLD (AD) 254.

 

Section—111
(g)

In
the case of forfeiture of a tenancy for denial by the lessee of title to the
immovable property in the lessor, a written notice to the lessee of intention
to determine the lease is not compulsory as the notice is not part of the cause
of action for eviction. The cause of action is the denial of the landlord’s
title resulting in determination of the tenancy by forfeiture.

Muhammad
Ishaque v. Ekramul Haque Chowdhury and others, 22 BLD (AD) 8.

 

Section—118

An
exchange is a mutual transfer between two persons of the ownership of properties,
but either both the things should be money or neither of them should be money.
Therefore, transfer of ownership is a pre-condition for a valid exchange. When
there is a question of title to be decided on the basis of an exchange deed,
the party claiming title must prove that he had ownership in the property
exchanged.

Mst. Sahera
Khatun and another Vs. Anwara Khatun and others, 13 BLD (AD) 171.

 

Section—123

In
the absence of a registered instrument a gift by a person belonging to Hindu
community (governed by the Dayabhaga School of Hindu Law) is not valid under
the provision of section of 123 of the Act.

Kala Miah Vs
Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.

 

Transfer of property Act, 1882

Transfer of property Act, 1882 [IV
of 1882]

Section-41

The case
of the plaintiff was that by 3 registered sale deeds exhibits-2, 2(A), 2(B), he
transferred the suit land to defendant 3 on 22.04.1974 and the defendant -3 in
his turn, by another deed of conveyance registered, exhibit- 1, on 11 same date
agreed to recovery the said land to the plaintiff on receipt of Taka
6,000.00—if one wants to be Projected under Section -410 the transfer of
property Act, he is required to prove that he took all reasonable care to
ascertain the title of his vendor. He inquired at least in the local
Sub-Registrars office to know if the land had any charge or encumbrance or not
to establish his bona fide. He would naturally try to get all the documents of
title and possession from his vendor. Onus is very heavy on him. There is no
onus on the other side the defendants 1 and 2 pleaded that they were bona fide
purchasers for value without notice of the Ekrarnama. But they did neither
plead nor lead any evidence that they took any steps to ascertain the title of
their vendor, defendant 3 or their purchased land. i.e. the suit land did not
have any charge or encumbrance. They did not make any inquiry even in the local
registration office. They did not want to get the documents of title or
possession. In their deeds, exhibit A(2) and A(3) though executed and
registered about four years apart. It is written in verbatim, to trace, the
title the defendant 3 is ‘খরিদ
সূত্রে মালিক দখলকার ও মালিক বটে
This vital fact of
purchase from the
plaintiff
was deliberately suppressed exhibits A(2) and A(3, Purpose was very clear, not
to divulge the knowledge about the Ekramama.

In his
deposition, defendant 1 as DW- 1 stated that the plaintiff transferred the land
to the defendant 3 by an out and out sale, In cross examination, he admitted
that defendant 3 on being asked told him that the original Kabala was lying
with the plaintiff. He did not try to obtain the Kabala. Defendant 2 as DW-2
deposed in the same vein that original Kabala was with the plaintiff and he did
not try to get the Kabala. Both of them however, stated that they purchased
seeing the copy of the Kabala, But they did not adduce the copy to probe their
bona fide.

Mrs. Wahida Begum
& Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238

Section-52

The
Miscellaneous case for pro-emption was disposed of and allowed on 27.06.1983
Aforesaid two deeds of re-conveyance were executed on 28.02.1983. The finding
of the trial court that the deed of re-conveyance is hit by doctrine of lis
pendents under section – 52 of the Transfer of Property Act was rightly arrived
at.

Jahangir Alam Vs.
Sri Sailish Chandra & Ors. 9 BLT (HCD)-78

Section-52

In the
instant case the purchaser did not adduce any evidence to show when the
purchaser go the purchased land mutated in his name. But. Exts. Uma seris
clearly show those were issued during the Pendency of the proceeding for
pre-emption. If it is so, such mutation or subdivision is not based on any
lawful order of a Revenue officer. Because the order admittedly obtained
without service of notice upon the pre-emptor and his brothers and sisters must
be also hit by the doctrine of lis pendans under Section 52 of the transfer of
property Act.

Harunur Rashid Vs.
Afroza Khanam & Ors. 9 BLT (HCD)-135

Section —52

During pendency of
the pre-emption Case

If
inspite of re-transfer or reconveyance to the original vendor subsequent to
filing of the case seeking per-emption, the pre-emption is allowed, then the
Principle of us pendense also will be applicable in the pre-emption case.

Ambiya Khatun &
Ors. Vs. Noor Ahmed & Ors 13 BLT (AD)206

Section-52

The
effect of section 52 of Transfer of Property Act is not to wipe out a sale
pendentelite altogether but to subordinate it to the rights based on the decree
or the order passed in the proceeding. The pendentelite takes the property
subject to the result of the suit or proceeding. It is to be noticed that the
right under the decree or order is sought to be protected by the doctrine of
lis pendens. But if proceeding cannot yield any result creating any right in
favour of a party to the proceeding, the question of applying the Doctrine does
not arise.

RAJUK & Ors Vs
Habibur Rahman & Ors 13 BLT (HCD)506

Secton-52 & 56

Doctrine of Lis  pendence

Appellant
Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd.
when there was no civil suit pending. Therefore the High Court Division
committed an error in holding that the transfer the took place during the
pendency of suit and was hit by the doctrine of lispendence.

Bushra Complex Ltd.
& Ors Vs. Syeda Sabera Khatun & Ors. 12 BLT (AD)-40

Section-53(A)

Held We
agree with the finding of the High Court Division that the petitioner Zubeda
Ahmed did not acquire any title by way of gift from Hafiz Mohammad Ahmed who
himself had no title but merely held power of attorney to transfer.

Mrs. Zubeda Ahmed
Vs. Bangladesh & Ors. 10 BLT(AD)-32

Section-53A read with President Order No. 16
of 1972 Article-10 (1)

Respondent
No.1 has not brought on record any material to establish that on the date of
agreement i.e. on December 29, 1970 as stated in the agreement for sale
relating to putting respondent No.1 into possession of the property or that on
any date before February 28, 1972 he was put into possession of the property by
the owner Wali Mohammad or his attorney Abdur Rahman (respondent No.4) or that
he obtained possession before 28-2-1972 and that was in possession at the time
when P.0.16 of 1972 become operative. The respondent No.1 in view of the
provision of section 5(2) of the Ordinance was required to establish the said
facts while he approach the Court of Settlement to get the property released
from list of abandoned property, but did not do so, since the statement in the
agreement for sale as to putting the respondent No.1 on the day of agreement on
receiving part of the consideration money into possession of the property is
absurd one because of the fact the agreement was executed at Karachi and as
such it was physically impossible as stated in the agreement for sale that on
receipt of the part of the consideration money the intended seller upon putting
the proposed buyer into possession parted with his possession of the property
in question. In the background of the discussion as on the promulgation of
President’s Order No.16 of 1972 the property assumed the character of abandoned
property and that as per provision of article 10 of the President’s Order No.16
of 1972 the property vested with the Government and that possession of the
property in question, though claimed by the respondent No.1, but as was not
established was with him on the day P.O. No.16 of 1972 came into force and that
as no material has been brought on record whereupon it can be said the possession
claimed by the respondent No.1 is of the kind of possession as is being
contemplated by the provision of section 53A of the Transfer of Property Act,
as such possession of the respondent No.1 of the property in question is not
protected under section 53A of the Transfer of Property Act.

Government of
Bangladesh Vs. Mr. K.M. Zaker Hossain 12 BLT (AD)236

Section-54

Receipt of the
Consideration money.

Adverse
Possession—From the evidence we find that the plaintiff has categorically
deposed that he has been in possession on the basis of lease granted through
receipt and that the lease has been supported by the receipt issued at a time
when the plaintiff was present and the same has been supported by P.W. 2.
Defendant No. 1examined on commission stated that he has transferred the suit
land in favour of the plaintiff on the basis of receipt which was written in
presence of the witnesses and delivered the huts to the plaintiff on receipt of
the consideration money and duly signed the receipt evidencing receipt of the
amount on 14.02.1949. Since the receipt is not a deed of title could not confer
title to the plaintiff under the provision of section 54 of the Transfer of
property but the uninterrupted adverse and hostile possession of the plaintiff
over a period of 12 years from the date of 14 February 1949 upto 1961 i.e. the
period prior of alleged declaration property as enemy properly, the plaintiff
has acquired title by adverse possession.

Aranangsha Datta
& Ors. Vs. Satish Chandra Das 12 BLT (AD)-27

Sectiion-58(C)

Section
58(C) of the transfer of property Act contemplates mortgage by conditional sale
wherein it has been clearly laid down that where the mortgagor ostensibly sells
the mortgage property on condition that on such payment being made the buyer
shall transfer the property to the seller, the transaction is a mortgage by
conditional sale. The law permits for such a document.

Asmat Ali Vs. Abdur
Rafique Mridha & Ors. 9 BLT (AD)-77

Section 105 & 106

The
monthly tenancy is not heritable but it is a contract between individual and on
the death of any of the parties the contract terminates—after the death of the
tenant, his heirs cannot be substituted in the suit, in his place.

Abdul Malek &
Ors. Vs. Mst. Rezia Begum 9BLT(HCD)-338

Section-105 and 107

If we
consider Section 105 with section 107 of the Transfer of property Act it will
be clear that in order to constitute lease of an immoveable property of the
nature as claimed by the plaintiff a registered instrument signed by both the
Government, that is, defendant No. 1 and the plaintiff was necessary mentioning
a period and a price to be paid or promised to be paid which is totally absent
in this case. I am of the view that the terms ‘allotment’ and ‘allottee’
allottee cannot be synonymous to the terms ‘lease’ and ‘lessee’.

Sugar & Food
Industries Vs. Kashem Motors 12 BLT (HCD)-56

Section-106 read with

Premises Rent Control Ordinance

Valid and legal
notice
—agreement, clause speaks for one months notice in order to terminate the
tenancy – in the instant case, a notice dated 18.01.1974 was served upon the
respondent-tenant determining the tenancy with effect from 28th day of February
1974 and though the period of notice dated 18.01.1974 determining the tenancy
with effect from 28.02.1974 was more than period of 30 days contemplated by
Ext. 1 the same do not in any way prejudice the petitioner or suffer from any
illegality or infirmity in the service of notice determining the tenancy and is
in consonance with the terms of Ext. 1 and the provision of law in spite of the
fact that the payment of rent was according to the English calendar month and
only 15 days notice is required for determination and termination of the
tenancy under the provision of Section 106 Transfer of Property Act. In that
view of the matter allowing more than one months notice to determine the
tenancy has not contravened any of the provision of the Transfer of property
Act or the terms of Ext. 1 as there was no alteration or variation thereof and
the same is valued compliance with the agreement between the parties and thus
the notice determining the tenancy is also a valid one.

Sontosh Mukar Das
Vs. Hajee Badiur Rahman. 10 BLT (AD)-59

Section-107

Abdul
Hakim raised construction in the suit land is not disputed by the defendants.
In view of such facts, though the suit land was recorded in the name of the
defendants, I am of the opinion that such record will not stand on the way in
getting a decree by the plaintiffs in the suit since the plaintiffs have
acquired a heritable, non-ejectable right in the suit land, particularly when
the said S.A. record which. was prepared after 1960, after the NonAgricultural
Tenancy Act 1949 came into force. I am further of the view that the plaintiffs
have acquired a right which cannot be said anything less than title in the suit
land.

Ramjan Mia & Ors. Vs. Idu Mw & Ors. 10
BLT (HCD)-229

Section- 111(g)

Only
requirement of clause (g) is that the lessor does some act showing his
intention to determine the lease and there is no reason why the lessors
election by way of a notice must be prior to the institution of the suit. In a
case of forfeiture of tenancy for denial of title, written notice of lessor’s
intention to determine the lease is not compulsory and must be optional as the
notice is not a part of the cause of action for such eviction and that the
cause of action is the denial of the landlord’s title resulting determination
of the tenancy by forfeiture.

Zohra Khatton &
Ors. Vs. Ekamul Haque Chowdhury & Ors. 10 BLT (AD)-171.