- 2(c)—The doctrine of merger contained in section 111 of the Transfer of Property Act is subject to section 2(c) which makes it inapplicable to leases created before the Act came into force.
Vs. Saijuddin Khan (1954) 6 DLR 25.
- 3—”Actionable claim” includes existing debts payable in future or assignments of benefits under contracts for the supply of future goods.
Ali Vs. Nurul Amin (1955) 7 DLR 406.
—The words “conditional or contingent” mean that in case of debts or benefits accruing conditionally or contingently the immediate right to recover by action does not arise until the condition has been fulfilled or the contingency has occurred. Ibid.
—The true test of determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue partakes of the character of a debt or a beneficial interest in movable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Ibid.
—Beneficial interest in movable property—Right to claim the benefit of a contract.
Right to claim the benefit of a contract for future delivery of goods sold is a beneficial interest in movable property’ within the definition of actionable claim and as such assignable. Ibid.
—A entered into a contract with B to do certain works; he also entered into a contract with C under which C agrees to finance A in the execution of his contract works on condition that his advances would be a first charge on the bills due plus certain interest.
Held: What A purported to assign was the right only to claim payment for works performed under the contract. This was not merely a right to sue for breach of contract but was an actionable claim. Ibid.
—Attestation—Personal acknowledgement of signature: A personal acknowledgement of signature or mark as regards the execution of a deed by an executor within the meaning of the section may be either express or may even be inferred from conduct and it is sufficient if it is an acknowledgement of the execution of the deed.
Pandey Vs. Nageswari Debi (1956) 8 DLR 65.
—Valid attestation: It is sufficient for valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Ibid.
—Registration is notice when the document is compulsorily registrable.
The doctrine of constructive notice by reason of registration applies only in the case of documents which are compulsorily registrable.
Chandra Vs. Purameswar Roy (1957) 9 DLR 476.
—Notice of registration of sale deed is a constructive notice unless proof is given to show that there was no such notice. Ibid.
—Whatever is notice enough to excite the attention of a man of ordinary prudence and called for further enquiry is, in equity, notice of all facts to the knowledge of which an enquiry suggested by such notice and prosecuted with due diligence would have led.
Dula Mia Vs.
Haji Md. Ibrahim (1956) 8 DLR 616.
a constructive notice.
Sk. Vs. Esmail Sikdar (1957) 9 DLR 294.
registered transfer amounts to a notice.
Mosahar Vs. Md. Majibar Rahman (1953) 5 DLR 22.
—The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1927 amendment of section 3 remains the same, viz, that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circuinstances of each case. 1956 PLR (Lah) 1840.
—Where licensee is permitted to erect permanent structure and thereafter allowed to continue to enjoy the same—License becomes irrevocable. A mud-wall hut is a permanent structure.
Vs. Etwari Mia (1962) 14 DLR 776.
is said to have notice”— When duty to make enquiry is imposed on purchaser of property having tenants on it.
It was contended that if a tenant be in possession of land which is transferred it is the duty of the purchase& to make an enquiry from the tenant as to the nature and incidents of his title.
Held: Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. ft cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess.
A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest.
Possession which is prima fade lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory there would be good
grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry.
Vs. Sk. Muhammad Shafi (1962) 14 DLR (SC) 119.
—An interest created under an agreement for sale of an immovable property does not fall within the definition of “actionable claim.”
“Actionable claim’ as defined in section. 3 of the Transfer of Property Act mean any claim to an unsecured debt or any beneficial interest in any movable property.
Purchase of any interest in any actionable claim is prohibited under this section when the purchaser is a judge, lawyer or an officer of the Court.
Vs. Abdus Sobhan (1978) 30 DLR 16.
6—Property of any kind may be transferred.
A right to the reconveyance of immovable property, being ever so much more solid than a right of co-entry, should be treated as property. 1952 PLR (Lah.) 196.
6(a)—Transfer of expectancy
Dispute relating to land between mother, stepmother and sister of last male owner on
the one side and reversioner on the other—Parties not sure as to their respective shares—Compromise deed executed to avoid further litigation and to put an end to doubts—Deed, not invalid as transfer of expectancy. (1951) PLR (Lah.) 293.
35—Doctrine of election—The beneficiary must give effect to the instrument as a
The foundation of the doctrine of election is that a person taking benefit under an instrument must also bear the burden imposed by it and that he cannot take under and against the same instrument. It is, therefore, a breach of the general rule that no one may approbate or reprobate. The doctrine is based on intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.
Ali Vs. Lokman Hakim (1956)8DLR 112
- 40—Sale by mortgagor of equity of redemption—Vendee covenanting to reconvey to vendor mortgagor partition of property after redemption—Vendor-mortgagor subsequently selling his right to reconvcyance also to vendee—Earlier sale successfully
pre-empted—Pre-emptor selling his rights under the pre-emption decree to mortgagee— Covenant to recovery, though personal, held nevertheless, to be annexed co-ownership of land. 1952 PLR (Lah) 196.
Ss. 40, 54
and 130—Even a benamder can maintain a suit for reconveyance in place of the principal.
In some decisions it has been opined that by express or implied terms in the agreement between the parties this right may be limited within the family of the promisee. Therefore, in the present case in the absence of even such limitation in the agreement the right of rcconvcyancc was assignable and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs have locus standi to institute the Suit for specific performance of contract against the original vendee.
Vs. Fajilatennessa & ors. (1979) 31 DLR 159(160).
—Right of reconveyance of immovable properly is an actionable claim in the vendor which can be transferred legally.
Seru Mia Vs.
Fajilatennessa & ors. (1979)31 DLR 159.
—When section 130 of the Transfer of Property Act is read with sections 40 and 54 of that Act there remains no doubt that the right of reconveyance of immovable property though not an interest in the land, is an interest very much annexed to the ownership of the land; and this right is an actionable claim in the vendor which is transferable.
Seru Mia Vs.
Fajilatennessa & ors. (1979) 31 DLR 159.
—A sale of
land by unregistered. deed without delivery of possession—Subsequent sale by registered deed—Subsequent sale has precedence.
previous sale of land was by an unregistered deed and possession was not delivered in consequence thereof and subsequently the same land was sold to another person by a registered deed. It was held that the subsequent sale has precedence over the previous sale.
Pordil Khan Vs. Sufaid Gui. PLO 1965 (Pesh)
- (Bashiruddin, J)