(IV OF 1882)
Section — 3
Machineries of a mill attached to the ground whether immovable property—
Character of machineries to attain the character of permanent attachment so as to become an immovable property must partake of the character of the attachment of trees and shrubs rooted to the earth — The test is whether such attachment is for permanent beneficial enjoyment of the immovable property Mill machineries cannot be said to be permanent fixtures to assume the character of immovable property—General Clauses Act, 1897(X of 1897), S. 3(25).
Bangladesh Vs. Anil Ranjan Chowdhury and others, 5BLD (HCD) 105
Ref: A.I.R. I 969(Mad) 346; A.LR. 1960 (Cal) 33 1; A.I.R. I 963(Nag) 224 — Cited.
Attesting of a document
— When attestation makes one a contesting party — Where it is shown by other evidence that when be-coming an attesting witness, a person must have fully understood what the transaction was, his attestation may support the inference that he was a consenting party — He cannot take advantage of his own wrong — He cannot both approbate and reprobate at the same time.
Shrish Chandra Das’ Vs. Sri Sri Chatteswari Debi Bigraha, represented by She- baits : Chandra Sekhar Chakraborty and others, 6BLD(AD)291
Ref: AIR. 1928 (PC) 20; (1898-99)3 C.W.N. 207; 1 BLD (AD) 91; 37 DLR (AD) I 29;—Cited.
Section — 5
According to Transfer of Property Act, a transfer means voluntary act of transfer by which real right in the property passes from one person to another. Section 5 of the Transfer of Property Act has not spelt out transfer in broad details;
Government of Bangladesh represented by the Deputy Commissioner, Bakerganj Vs. Aziz Molla being dead his heirs : Md. Mozibur Rahman and others, 11BLD(AD) 247
Ref: l3Moor Ind.App.585(PC); I.L.R.339 (Cal)967(983-984); I 6C.L.J.436; A.1.R. 1915 (Cal)819; A.I.R.1916 (Cal) 136 (141; A.I.R. 1966 (SC)
337; 12 C.W.N. 478; A.LR,1957 (SC)1395; A.I.R.l968 (Pat) 274; A.I.R.1977 (Cal)509; 84 C.W.N. (1979-80) 688; A.I.R. I 960(Madras)33; AIR. 1954 (Bombay) 95; I 9DLR 33;— Cited.
Restraint on transfer
— Disposition of property by a will is not a transfer within the meaning of the Transfer of Property Act — Giving life interest to the beneficiaries to enjoy usufructs of the properties with a restraint on transfer of the properties is permissible — Such restraint is not void — Provision of section 10 of the Transfer of Property Act is not applicable.
Narendralal chowdhury and others Vs. Bimal Kanti Chowdhuiy and others, 3 BLD (HCD) 40
Sections — 14 and 54
Rule against perpetuity
— Rule against perpetuity is not attracted in the case of a contract for sale of immovable property and the contract for reconveyance of immovable property.
Abdul Quddus Vs. Anjuman Khatun and others, 4BLD(HCD)237
Transfer by ostensible owner —
Circumstances against protection of purchaser’s title — In the written statement though the defendant has made out a case of bonafide
purchase, no positive evidence as to his bonafide has been proved — The plaintiff and defendant No. 2 resided in the same house and they are first cousins — It is therefore likely that defendant No. 2 knew that the plaintiff purchased the land in the benami of his minor son — The defendant purchased the land without the title deed of his vendor or without ascertaining who paid the rents in order to indicate good faith.
Abdul Gafur Vs. Ali Akbar and another, 4BLD(HCD)326
—Whether a deciee against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benamder as fraudulent knowing fully well that the real owner defendant was in possession—When a decree is obtained by the plaintiff practising fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree—The real owner can avoid that transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the benarndar—Evidence Act, 1872 (I of 1872), S. 44.
Sultan Ahmed Vs. Md. Waziullah and others, 7BLD(HCD)235
Ref. 24 DLR63—Cited.
Injunction for undivided family dwelling —Suit for injunction is maintainable to restrain stranger purchaser from entering into an undivided family dwelling house—stranger purchasers remedy lies in a suit for partition on the strength of his title.
Surendra Nath Biswas Vs. Birendra Nath Bainagi and others, 2BLD (HCD) 135
Ref: 9 DLR (Dac) 119; A.I.R.1951 (Cal) 412; 55C.W.N.289; I.L.R.5 Born. 499; 61C. W.N.776; 54C.W.N.912; —Cited.
Purchaser from a co-sharer of the undivided family dwelling house whether should be restrained by injunction?— Whether such a purchaser already in possession should be restrained—Whether the suit to restrain such a purchaser already in possession is mintainable—A suit for permanent injunction to restrain the defendants already in possession of their respective shares purchased from co-sharers is not maintainable — Defendants possession in the suit huts and lands cannot be disturbed save and except by a suit for partition—The joint and undivided shares of the defendants and plaintiffs may be divided by metes and bounds by way of partition, till then the defendants are entitled to maintain their possession.
Md. Bashiruddin and others Vs. Md. Cheraguddin and others, 7BLD (HCD) 436
Lis pendens in pre-emption proceeding
Lis pendens —
The expression “otherwise dealt with” in section 52 of T.P. Act covers subdivision of holding — Mutation of holding during the pendency of a pre-emption proceeding comes within the mischief of the doctrine of lis pendens—Such mutation will not bar the right of pre-emption — NonAgricultural Tenancy Act, 1949 (XXIII of 1949), S.24 — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 117.
Md. Abdur Rouf and others: Vs. Ahmuda Khatun and others, 1BLD(AD)269
In a suit for specific performance of contract an order of injunctio’ estraining alienation of property is unnecessary as section 52 of Transfer of
Property Act evidently provides adequate safeguard — Specific Relief Act, I 877(1 of 1877), S. 56(1).
Haji Md. Elias and another Vs. Mrs. Suraya Rahman, 1BLD (HCD) 147
Ref: 9 C.L.J; 96; 34 C.L.J. 79; 5DLR 470; PLD 1968 (Lah) 501; A.I.R.1930 (Lah) 858; A.i.R.1930 (All) 387; A.I.R.1938(Lah)220— Cited.
[Quaere: Whether Safeguard of section 52 T.P. Act is available in case of purchase by a person during pendency of suit for valuable consideration without notice of the contract — Specific Relief Act, 1877 (I of 1877), S. 27(h).]
Doctrine of lis pendens—Its applicability in a pre-emption case
— The right of preemption, in a case of the present nature, is rot absolute but is subject to the agreement r reconveyance — If the laxd has already bt reconveyed during the pendency of the preemption case the doctrine of lis pendens cannot come to the rescue of the pre-emption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96.
Serajul Haque and others Vs. Ahnzed Hussain and others, 4BLD (HCD) 194
Ref: 35DLR (AD) 225; I 3DLR287—Cited.
Section — 52
Doctrine of us pendens
—Whether applicable in case of pre-emption proceeding— Doctrine of us pendens does not prohibit reconveyance of the property to the vendor during pendencyof the pre-emption case.
Md. Abbas Ali Vs. Md. Osman Au and others, 6BLD (HCD)131
Section — 52
Doctrine of us pendens—
The sale of the suit land by the heirs of the original plaintiff during the pendency of the second appeal will be governed by the doctrine of lis pendens.
Shangsharer Nessa and others Vs. Mafizur Rahman and others, 12BLD (AD) 195
Section — 53A
Part Performance of a contract
Contract — Time of performance —
Part performance — Time is essence of the contract when both parties are conscious that the transaction would have to be completed within
the time fixed — Contract failed or terminated on the expiry of such time — Defendant in possession of property under the contract not entitled to protection under section 53A of T.P. Act—Bar under the proviso to section 53A does not apply against a party who purchased the property after termination of thecontract though with the knowledge of the defendant’s contract—Contract Act, 1 872 (IXof 1872), S. 55.
A.N.M. Shamsul Haque Vs. Most. Jahanara Begum, 2BLD (HCD) 65
Ref: 42C.W.N.630; A.I.R.1967 (Bornbay)34; 27DLR129; A.I.R.1970 (Rajasthan) 167; A.I.R. I 965(S.C.)27 I; A.I.R. 1962 (Kerala)86;A.I.R.
l962(Madras)423;PLD 1964(La- hore)510;28DLR(AD)5 l2;—Cited.
Section — 53A
Doctrine of part performance in unwritten contract —
Whether oral contract could give rise to a relief under the doctrine of part performance — This is the relief that has been given by section 53A of the T.P. Act but the condition precedent for attracting the section is the written agreement which in the present case is not to be found.
Mehar Khatun and others Vs. Sarat Kumar Kanangoo, 5BLD (AD)1
Ref: AIR. 1 950(SC)i; A.I.R. I 970(Cal) 444—Cited.
Section — 53A
Doctrine of part-performance—
One who places reliance on the doctrine of part performance of contract succeeds only when he has been able to prove a contract — Whether the plaintiff in defending his possession can invoke the provision of section 53A of TP. Act — In view of the finding that the agreement for sale was not a genuine document the plaintiffs possession is not referable to it The plaintiff is not entitled to the benefit of the section.
Abdul Kader and others Vs. A.K. Noor Mohammad and others, 5BLD (AD) 33
Ref: (1973)25DLRI; (1955-56)60C.W.N. 714; A.I.R. I 939(All) 611 — Cited.
Section — 53A
Doctrine of part performance—
Whether one can succeed on the doctrine when no case was made out in the written statement—On the Showing of the plaintiff himself the
defendant was in possession of the suit land in furtherance of his bainapatra—The equitable principle as given in section 53A of the T.P. Act call be invoked by the defendant for protecting his possession.
Mir Abdul Au Vs. Md. Rafiqul Islam, 8 BLD (AD) 149
Part Performance —
Plea of part performance (that the plaintiff was delivered possession in a part of the property) — Whether tenable in a probate proceeding — Plaintiff will not be without remedy for execution of a decree (if it is made in her favour) — Principle of part performance creates no real rights — It is an estoppel between the proposed transferee and transferor which shall have no operation against third persons — The Succession Act, 1925 (XXXIX of 1925), S. 211.
Shubra Nandi Majumder Vs. Mrs. Be- gum Mahmuda Khatoon, 10BLD (AD) 84
Ref: 53C.W.N. 374(PC) — Cited.
Section — 58(C)
Whether sale with a contemporaneous agreement for resale constitutes a mortgage or an out and out sale — In view of amendment of the
T.P. Act a transaction of sale cannot be treated as a mortgage even if the sale was made with a condition of resale unless the condition is embodied in the sale deed.
Serajul Hoque and others Vs. Ahmed Hussain and others, 4BLD (HCD) 194
Ref: 12 DLR 849; A.I.R. 1946 (Nag) 264;—Cited.
Sections — 105 and 106
Monthly tenancy — Whether heritable — By a tenancy from month to month a right to occupy and enjoy the premises is created — This right is based on personal relationship between the landlord and the tenant — With the death of the tenant the tenancy comes to an end.
Abdul Latif and another Vs. Abdul Mannafa,zd others, 3BLD(AD)37
Ref: 32 DLR(AD) 170—Cited.
Section — 105
Lease and Licence — Distinction of — Exclusive possession of land cannot convert a licence into a lease — Intention of the parties is to be looked into whether the agreement creates lease or licence — Conduct of the parties is immaterial where there is a written document creating the relationship between the parties — Easement Act, 1882 (V of 1882), S. 52.
The New Dhamai Tea Estate Ltd. Vs. Arjun Kurmi 3 BLD (AD) 121
Ref: 16 DLR(SC)169; A.I.R. 1965(SC) 610; (1952) 1 All. E.R.. 149(1952)1 All. E.R. 199; (1960)1 All. E.R. 348; (1963)3 All.E.R. 77; (1957) 3
All .E.R 563; (1963) 2 All. E.R. 647; — Cited.
Section — 106
Termination of tenancy by notice
Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice is presumed to
be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption— General Clauses Act, 1897 (X of l897), S. 27—Evidence Act, 1872 (I of 1872), S.
Dr. Jamshed Bakht Vs. Md. Kamaluddin, 1BLD (HCD) 97
Ref: A.I.R. 1915 (Cal) 313; 39 C.W.N. 934; 51 C.W.N. 650; 52 C.W.N. 659; 6DLR 267; A.I,R. 191 8(PC)102; A.I.R. 1958 (Cal) 251; 22DLR 664; 1
Abandoned property—Building in urban areas —
Abandoned premises let out by Government to private person on monthly rent — General law of landlord and tenant will apply in respect of termination of such tenancy — Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. 16 of 1972), Articie—5; Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules 1972, Rule-lU; Premises Rent Control Ordinance, 1963(XXof 1963), Ss. 18 and 19.
There is no provision either in P.O. No. 16 of 1972 or in the Rules framed there under laying down any provision for ejectment of any private
allottee from the premises in case the Government requires the premises bonafide in public interest or on account of any default in paying monthly rents as such. In such circumstances, there is no other option left with the Government as the substituted landlord of an abandoned building but to take recourse to the normal law of termination of a monthly lease and tenancy under section 106 of the Transfer of Property Act read with the relevant provisions of sections 18 and 19 of the Premises Rent Control Ordinance. In the absence of any specific statutory provision providing for any special right of the Government to summarily evict and eject a private allottee of a Government building, the normal rule of landlord and tenant will apply.
Bank of Credit and Commerce International (Overseas) Ltd. Vs. Bangladesh, 1BLD (HCD) 273
Section — 106
Service of notice by lapse of time
Service of notice by registered post— Service shall be deemed to have been effected after lapse of a reasonable time— General Clauses Act,
1897 (X of 1897), S. 27.
Theere is no controversy neither regarding the proper address nor regarding the posting by registered post. In these circumstances Appellate
Division held that the conclusions drawn by the learned Judges of the High Court Division have not been correctly drawn. The provision of section 27 did not leave any scope for drawing any adverse presumption regarding service of notice. In case of a letter sent by registered post according to these provisions. as soon as the posting by registered post of a properly addressed letter containing any notice or document to be served, by post is proved such service of notice shall be deemed to have been effected after the lapse of a
Service of notice on the wife’s brother at the suit premises—
There has been compliance with the terms of section 106 of the Transfer of Property Act.
Hajee Khabiruddin Alimed Vs. Muhammad Salam Kabir, 3BLD (AD)53
Sections—106 and 110
Notice to determine tenancy —
When the notice should expire — In view of the absence of any objection as to the precise fulfillment of the period of notice on the expiry of the tenancy it is not necessary to go into the validity as to the meticulous observance of the exact date of expiry of the tenancy upon which the notice should also expire.
Nur Banu Vs. Noor Mohainmad and others, 4BLD (AD) 69
Ref: (1897) I.L.R. 24(Cal)720: (1920) I.C. 593; (1932)37 C.W.N.(PC) I ;—Cited.
Section — 106
Sufficiency of quit notice —
in case of default in payment of rent notice of three months is not required according to the terms and conditions of bharanama— Therefore on the ground of default in the payment of rent the quit notice under section 106 of the Traiisfer of Property Act duly served on the tenant terminating the tenancy is valid, legal and sufficient.
Fazal Karim Vs. Sree Dulal Kanti Baidya and another, 6BLD (HCD)10
Section — 106
Termiantion of tenancy—
Termiantion of tenancy by notice whether necessary to evict a tenant — Whether termination of the tenancy in terms of the agreement entitles the landlord to evict the tenant — The tenant is liable to be evicted if he tenant has incurred – the liability under the Rent Control Ordinance, otherwise not. even if the tenancy has been duly terminated by service of notice.
Fazal Karim Vs. Sree Dulal Kanti Baidya and another, 6BLD (HCD) 105
Ref: A.l.R. 1979 (SC) 1745 — Cited.
Section — 106
Notice found valid and sufficient by the trial Court—
Appellate Court declined to embark upon a fresh inquiry into the validity of the notice.
Mrs. Zahura Khatun and others Vs. Mrs. Rokeva Khatun and others, 10BLD (AD) 282
Sufficiency of notice for eviction of tenant
When the tenant raises the question of sufficiency of notice and asks for a notice of a longer duration on the ground of the tenancy being
for manufacturing purposes within the meaning of section 106 of the Transfer of Property Act, the burden of proof lies on the party who claims it to be so. The extent of the burden is to establish that the exclusive pur- pose of the lease was the manufacturing pur- poses.
Nani Gopal Ghosh and another Vs. Pro fessor Md. Ishaque, 11BLD (AD) 233
Ref: A.I.R. 1954 (Cal) 224; A.LR.1981 86 (Gui); A.I.R. 1982(SC) 127—Cited.
Lease of immoveable property—
Whether valid lease may be created by an unregistered deed of lease — Section 107 TP Act provides that a lease of immoveable property for a
period exceeding one year can be made only by a registered instrument—This implies that a lease for a period not exceeding one year may be made by an unregistered instrument — Even if a lease is created for a longer period by an unregistered instrument, it will be valid only for one year.
Khodeja Begum and another Vs. Sagar-mal Agarwala alias Sambamal Agarwala and another, 7BLD (AD) 147.
Ref I8DLR 107—Cited
Doctrine of frustration—Whether it applies to contracts only or to leases also—
Whether provision of section 108(e) of the Transfer of Property Act or Doctrine of Frustration as contained in section 56 of the Contract Act will apply in case where the entire structure of the tenancy was destroyed— Where only a material part of the tenancy is destroyed or otherwise rendered substantially permanently unfit for the purpose for which it was let at the option of the tenant the lease will come to an end—But where the entire subject matter of the tenancy is destroyed the provision of section 108(e) of the Transfer of Property Act will not be applicable — The doctrine of frustration as embodied in section 56 of the Contract Act will apply in case of destruction of the entire subject matter of the tenancy;
Azizur Rahman and others Vs Abdus Sakur and others, 4 BLD (AD) 287
Ref 22DLR 126 A JR 1968(SC) 1024 A JR 1961(Cal) 70 A 1R 1950(CaI)441 64 C.W.N. 932; PLD 1970 (SC) 185; (1981) 2WLR 45 Cited
Undesirable tenant — Provision for determining the tenancy —
There is no provision of law for determining a tenancy on the ground of the tenant becoming undesirable unless he comes within the mischief of for- feiture under the T P Act
Mrs Mana Keshi Drozano Vs Messrs Hassan Movies Ltd represented by its Man- aging Director, 9 BLD (AD) 129
Ref A I R I 962(Cal)597 — Cited
Section — 113
Default in payment of rent by the tenant—Whether such payment of rent in a lump makes the tenant a defaulter—Whether there is waiver and acquiescence of the default on the part of the landlord by acceptance of rent for several months in .a lump—A tenant making payment of rent in lump shall ordinarily be treated as defaulter unless there is a contract to the contrary or such payment is covered by waiver and acquiescence on the part of the landlord — Evidence shows that there was an arrangement between the landlord and tenant that karmachari of the landlord would come and collect the rent. This practice continued for 16 years — The consistent view of this Court is that waiver is a question of fact and is to be taken at the earliest opportunity and must be established on evidence — The defendant had made Out a case of waiver and acquiescence and the judgment of the High Court Division is set aside—Premises Rent Control Ordinance 1963 (XX of 1963) S18(5)
Md. Golam Hossain Vs. Mst. Asia Khatun Chowdhury, 8BLD (AD) 36
Ref: 4BLD298; I B .C.R.(AD)4 1; 31 DLR (AD) 183; 6BLD (AD)354—Cited.
Section — 116
Lease — Holding over and its effect —
As the lessors accepted rents from the lessees, the lessees continued to hold over—The arbitration clause of the agreement of lease that had already expired cannot continue to be a term of holding over—The lease is renewed for the purpose for which the property was leased — But it will not be correct to say that such renewal amounts to continuation of the terms like arbitration clause of the expired lease.
Bangladesh House Building Finance Corporation Vs. MIs Moinuddin Akhtaruddin Chowdhury, 3BLD (HCD) 282
Ref: A.I.R.1962 (SC) 1810; A.I.R. 1963 (SC) 90; A.I.R. 1953 (Cal) 349; A.I.R, 1942 (Oudh) 231; — Cited.
Non—payment of rent whether extinguishes a tenancy —
Non-payment of rent is no proof of non-existence of the tenancy and the tenant cannot question landlords title unless he discontinues tenancy and restores possession to the landlord — Once a tenancy is created, it will be presumed that it is continuing unless it is shown that it has ceased.
Hake Abduls Sitar vs. Mohiuddin and others, 6BLD (AD) 224
Section — 116
Right of heirs of late tenant —
A tenancy is not heritable — On the death of a tenant his heirs are not under any obligation to continue the tenancy, In the same way, the
landlord is not bound to keep the lease alive — If the heirs continue to stay on they have been rightly held to be tenants by holding over.
Hake Abduls Sitar Vs. Mohiuddin and others, 6 BLD(AD)224
Ref: 32 DLR (AD) 170 — Cited
Tenant by holding over and tenant by sufferance —
A tenant continuing in possession after the determination of the lease with consent of the landlord is a tenant by holding over and a tenant remaining so without the consent of the landlord is a tenant by sufferance — Assent of the lessor may be inferred from the acceptance of rent from the lessee or demand of rent or suit for rent — No question of holding over by implication arises in the case of a tenant who has been repudiated by the landlord.
Nakul Das Mridha Vs. Bangladesh and others, 6BLD (HCD)331
Ref: 22 DLR (SC) (1970)395; — Cited.
Section — 116
Holding over —
Whether a lessee under an unregistered lease can hold over and continue as a tenant — A lease for a period not exceeding one year may be made by an unregistered document — If the lessee on the expiry of the lease period of one year continues in possession with the consent of the lessor, the principle of holding over will be attracted in this case — It is the possession of the lessee which is of fundamental importance in the case of holding over — Possession of a monthly tenant is also landlord’s possession — This possession is sufficient for bringing his case within the ambit of ‘holding over.
Chorea Begum and another Vs. Sagarmal Agarwala alias Sambamal Agarwala and another, 7BLD (AD) 147
Ref: 1 8DLR 107 — Cited.
Section — 116
When it is no tenancy by ‘holding over’ —
Reading the letter and the notice of the respondent as against the appellant’s letter expressing willingness to pay rent with moderate increase, it is found that the respondent was in search of grounds for the appellant’s ejectment — The respondent gave a go-by to the previous agreement and demanded renewal of the tenancy on fresh terms and con-ditions in such circumstances requirements of holding over are not fulfilled.
Mrs. Maria Kasha D’rozario Vs. Messrs Hassan Movies Ltd. represented by its Managing Director, 9BLD (AD) 129
Ref: AJ.R. I 962(Cal)597 — Cited.
Section — 116
Ejectment of tenant Doctrine of estoppel —
Applicability of — A tenant during the continuance of tenancy cannot deny his landlords title if he was inducted into possession by the landlord.
Md. Shafluddin Vs. Mahboob Hasan, 9 BLD (HCD) 108
Heirs of deceased tenant — Their legal status —
The heirs of the deceased tenant continuing in possession though not on the basis of any lease cannot be said to be in possession as trespassers and their possession would not be unconscionable to hold as possession of tenants by sufferance — The execution case against them is legally enforceable as such tenants.
Kalidas Sarma and others Vs. Pradip Das alias Shambhu and others, 9BLDHCD) 162
Ref: 1934(Ali) 474; 32DLR P) 170: 38 DLR (AD)97: 2 B.C.R.(AD)428 — Cited.
Section — 116
Suit for ejectment — Tenant by holding over —
Whether during the holding over the terms arid conditions of the old tenancy agreement would continue — The contention that by
holding over the original expired lease agreement would be revived is fallacious—The renewal of a lease in case of a holding over does not mean a continuation of the terms and conditions of the old lease but a new lease where there is no meeting of minds as to the terms and conditions on which the lease is to be continued.
Dr. Suriya Hoscain vs. Mrs. Taherunnessa, 9BLD (HCD) 319
Ref: I4DLR 826; 22DLR59; 39 C.WN 972: 25DLR 282; 22DLR56; 25DLR 282— Cited.
Sections— 123 and 129
Gift by a Muslim of immoveable property —
Section 129 of the Transfer of Property Act is an exception to section 123 of the same Act — This exception is available only to Muslims as to the transfer of property by way of gift.
Distinction between agricultural or non-agricultural land—
There is no indication in section 129 restricting its application to any particular class of land — After the enactment of S.A.T Act very little distinction is maintained between incidents of agricultural land and non-agricultural land.
There is no such Clause in section 89 of the Act or section 26C of the B.T. Act as to exclude the operation of section 1 29 of the Transfer of Property Act in case of transfer of agricultural land. If land as provided in section 129 has exempted the owner of urban property, which is generally more valuable than agricultural land, from transferring the same by a registered instrument, why should greater hardship be imposed on the holder of agricultural land by the requirement of a registered instrument for transferring his interest therein by way of gift judged from different view points. The effectiveness of an oral if of immoveable property when property made has not been curtailed by the language of section 26C of the Bengal Tenancy -Act or section 89 of the State Acquisition and Tenancy Act in so far as it has been preserved by section 129 of the T.P. Act.
Jabed Ali Vs. Aba Sheikh, being dead his heirs Md. Naimuddin and others, 3BLD (AD) 1
Oral gift of non-agricultural land by a Muslim
Oral gift of non-agricultural land by a Muslim is valid notwithstanding subsequent execution and registration of a deed of gift —- Muslim
Law — Non-Agricultural Tenancy Act, 1946 (XXIII of 1946), S. 23(1),
The provision of section 23 of the Non Agricultural Tenancy Act prohibiting transfer of non-agricultural tenancy without a registered document shall not apply to gifts of immoveable property by a Muslim. A valid gift of immoveable property with building and structures inter vivos can be made under the Muslim Law by oral gift. According to Muslim Law an oral gift is complete as soon as the declaration of gifts and the delivery of possession is given by the donor to the donee. When these essential conditions are complied with, the gift becomes perfectly valid and if a written deed is executed afterwards and registered, the oral gift would be valid notwithstanding the latter instrument of gift.
Alhaj Aklima Khatun and another Vs. Shah Alam and another, 1 BLD (HCD)
Ref: 22DLR (SC)134; A.I.R. l949(Mad) 307; F.A.No. 79 of 1963 (Unreported);49 l.A. 195 (209-10); 39 C.W.N. 882; 6 C.L.J. 328; 1935 A.C. 24;— Cited.