Transfer of Property Act [IV of 1882]
Sections 2(e) & 6—
A deed of
release being a registered document with promise to compensate in case the promisee suffers any loss is a kind of contrivance that comes within the broad spectrum of definitions of transfer under section 2, if not section 6 of the TP Act.
Bangladesh vs Aziz Molla 44 DLR (AD) 90.
Sections 3 & 130—
Having
considered the definition of ‘debt’ and the decided cases where ornaments were lying with the Bank could be considered as ‘debt’, and as such the ornaments lying with the Bangladesh Bank being recovered from Ms H Dey Jewelers are a ‘debt’ which could be claimed by its owners.
Aloke Nath Dey vs Government of Bangladesh represented by the Deputy Commissioner 56 DLR (AD) 66.
Section 3(g)—
Before
cancellation of the lease deed it was required of the Government to send a show cause notice to the petitioner to his changed address.
Rahmania Agencies Ltd vs Bangladesh 42 DLR 363.
Sections 6, 10, 11 & 40—
Right of
repurchase is not transferable. Ekrarnama is not a deed of conveyance—It is at best an agreement between the vendor and the vendee and by itself it does not create any interest in land. The restriction created in ekramama is quite valid. Unless the interest created by any transfer is absolute, section 11 Transfer of Property Act shall have no application.
Asim Ali vs Badaruddin 46 DLR 96.
Section 14—
Though the
petitioner’s covenant was not personal and it could be enforced by the heirs, it is hit by the rule against perpetuity inasmuch as no specific time was mentioned within which repayment of consideration was to be made.
Chandra Kanta Mistri vs. Sailendra Nath Sikder 49 DLR 514.
Section 41—
Purchaser
from a benamder is protected under section 41 of the Transfer of Property Act provided he satisfies the conditions laid down in the proviso to the said section—The real owner can avoid the transfer by his benamder provided no reasonable care was taken by the transferee.
Sultan Ahmed vs Waziullah 39 DLR 329.
Section 41—
The section
is an exception to the ordinary rule that the transferor cannot convey a greater title to the transferee than he himself has. If anyone seeks protection either under section 41 of the Transfer of Property Act or under section 115 of the Evidence Act, he must prove the facts entitling him to the benefits under either of the laws.
Wahida Begum vs Tajul Islam 52 DLR 491.
Section 43—
Where a
person having partial interest in certain property, transfers a larger interest and subsequently acquired that interest, in that case the provision of section 43 of the Act applies and the transferee is entitled to get interest so acquired.
Omar Ali Sheikh vs Shamsul Alam Mridha and others 55 DLR 257.
Section 48—
Title in
land—Whether subsequent purchaser in possession from a date prior to the date of purchase of the prior purchaser in part performance of agreement for salewill acquire title. Since earlier kabalas take precedence over the subsequent kabalas the plaintiffs have not acquired any right, title and interest in the suit land on the basis of their subsequent sale deeds in respect of properties already sold to the defendant Nos. 1 and 2 by the same vendors. There is no provision of law that title on the basis of subsequent sale deeds will take effect from the date of agreement .for sale if possession is delivered in part performance of the agreement.
Abdus Samad Khan vs Wazed Ali Fakir 44 DLR 495.
Section 48—
Bonafide
purchaser for value without notice—The doctrine of bonafide purchaser for value without notice is applicable in a case when the plaintiff wants to enforce the agreement for sale not only against the vendor but also against the transferee of the vendor’s title arising subsequent to the plaintiffs agreement for sale. Plaintiffs suit is not such a suit but is a suit for simple declaration of
title in the suit land and, as such, the said doctrine is not applicable in the present case. Court is to decide the case on the basis of the pleadings of the parties and evidence on record and not· on the basis of its own assumption making out a third case.
Abdus Samad Khan vs Wazed Ali Fakir 44 DLR 495.
Section 52—
Doctrine of
lis pendens envisaged under 52 TP Act not applicable to preemption matter, since with the reconveyance of the land in pre-emption proceeding to the original owner the lis pendens doctrine loses its relevancy.
Md Abbas Ali vs Md Osman Ali 37 DLR 324.
Section 52—
Since the
petitioners purchased the properties during the pendency of the suit they will be subjected to the result of the suit.
Mokthar Masum Abedin and others vs Nironjan Kumar Mondol and others 50 DLR 341.
Section 53A—
Respondent
No. l claimed to pre-empt the sale on the ground that he became a co-sharer by virtue of a decree which he obtained in his suit for specific performance of contract.
Held : As he did not obtain a kabala in pursuance ofa decree, his claim
as a co-sharer is without any basis.
Maleka Khatun vs Abid Ali 39 DLR (AD) 234.
Section 52—
Lis
pendens—Mutation proceeding was initiated after the filing of the pre-emption application hit by the doctrine of lis pendens.
M Banik vs Nitya Ranjan 39 DLR (AD) 75.
Section 52—
Lis pendens—Question
of bar of appeal— The doctrine of Lis pendens does not make alienations made during pendency of a suit void but only that such alienation will not affect the rights of other parties to the suit. It means that the purchaser pendente lite is bound by the result of the litigation. In the instant case, the petitioner having alleged that he had purchased the suit land and the decree
passed in the suit adversely affected his interest the District Judge has committed an error of law in not according permission to the petitioner to file the appeal.
Bangladesh Leaf Tobacco Company Ltd. vs Md Abdul Mannan 43 DLR 7.
Section 52—
Lis pendens
does not make a deed invalid, it only makes the right dependent on result of the suit.
Anil Ranjan Ghosh and another vs. Assistant Custodian of Vested and Non-Resident Property and Additional Deputy Commissioner (Revenue) 49 DLR 296.
Section 52—
Suit for
declaration of ex parte decree fraudulent—Scope of such a suit—Cause of action to file and maintain such suit—falsity of claim cannot be a ground for setting aside an ex parte decree. Only when the plaintiff challenges an ex parte decree
on the . ground of fraudulent suppression of summons to deprive him of the opportunity of contesting the false claim in such a suit and the plaintiff can establish such allegation then such an ex parte decree can be set aside as fraudulent. The plaintiff having purchased the suit property during the pendency of the suit which was decreed ex parte the impugned decree is binding
on him. They have no cause of action for the suit.
Haji Md. Jshaque and others vs Rupali Bank 43 DLR 621.
Section 53A—
The learned
Subordinate Judge, though mentioned about the agreement for purchase of the suit property, did not consider that the petitioner in part performance of the contract paid part of the consideration and obtained possession of the suit property.
Dr Shakawat Hossain vs Bangladesh 42 DLR 215.
Section 53A—
The Transfer
of Property Act has no manner of application in a case under the Succession Act. In every case it must be shown that the caveator, but for the Will, would be entitled to a right of which that Will would deprive him.
Shubra Nandi Majumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.
Section 53A—
The
defendant being in possession of the suit land in furtherance of bainapatra is protected by the provision of section 47 of the Registration Act.
Mir Abdul Ali vs Md Rafiqul Islam 40 DLR (AD) 75.
Section 53A—
Part
performance—When a transferor has delivered possession of his property to the transferee in part performance of a written contract neither the transferor nor any one claiming under him will be permitted to assert his title to the property in question or to recover possession of the same so long the transferee or the person claiming under him has done some act in furtherance of the contract and has performed or is ready to perform his part of the contract.
Progati Industries Ltd. vs Shahida Khatun 43 DLR429.
Section 53A—
Temporary
Mandatory Injunction—Possession claimed even on the basis of imperfect document can be restored to the plaintiff dispossessed without notice—the plaintiff was in possession on the basis of some documents however imperfect that document
might be and he could certainly have his possession protected under section 53A of the Act or under provisions of the Specific Relief Act and if dispossessed he could be put back to possession.
Bangladesh Mukti Judda Kallyan Trust vs Nurul Hossain 44 DLR 22.
Section 53A—
Once the
defendant obtained a sale-deed and continued in possession not on the strength of his bainapatra but on the strength of his sale-deed section 53A ran its full course and exhausted itself.
Rafiqul Islam (Md) vs Mir Abdul Ali 44 DLR (AD) 176.
Section 53A—
Tenancy
right—Whether it is protectable by the doctrine of part performance—The contention that a tenancy being merely a transfer of a “partial right in property” it could not be said to be a transfer of property within the meaning of section 53A TP Act was rejected. Though the right is only to enjoy the property still it is a right and the tenancy is a transfer of immovable property within the meaning of the said doctrine.
Pradhip Das alias Shambhu & others vs Kazal Das Sarma 44 DLR (AD) 1.
Section 53A—
The
respondent being in possession of the property on the basis of agreement for sale has the protection of the provision of section 53(A) of the Transfer of Property Act.
Bangladesh and others vs Kazi Ashrafuddin Ahmed 55 DLR (AD) 16
Section 55(1)(a)—
Sale of
land—Prayer for getting back consideration money on the plea of absence of sellers’ title when cannot be allowed—The facts of the case disclose that the plaintiff purchased the property with open eyes having opportunity to know of the title of the defendant and the plaintiff having obtained delivery of possession was still in possession in respect of the whole property. His
apprehension that 3l4 portion of the land will be taken over by the vested property authority is too vague and remote to give rise to any cause of action for the suit as framed.
Narayan Chandra Banerjee vs Md. Salek Ali Shaik 44 DLR 202.
Section 58—
Mortgage,
mortgagor, mortgagee, mortgage—money and mortgage—deed as defined in section 58 of TP Act, 1882.
HBFC vs A Mannan 41 DLR (AD) 143.
Section 58—
Mere
inadequacy of consideration is no ground to treat a document to be a mortgage.
Somedullah vs Mahmud Ali 44 DLR (AD) 83.
Section 105—
The relationship between the lessor and lessee is a jural relationship, cautiously guarded by section 105 TP Act.
National Engineers Ltd. vs Ministry of Defence 44 DLR (AD) 179.
Section 105—
A tenancy
can also be created by oral agreement. The fact that no one actually saw payment ofrent does not detract from the fact that the appellant was described by PWs as a tenant under the respondent.
Narayan Chandra Rajak Das vs Md. Amjad Ali Miah & others 44 DLR (AD) 228.
Section 105—
Heritability
of a monthly tenancy—Maintainability of execution proceeding against the heirs of a deceased tenant —A monthly tenancy being a lease is an interest in an immovable property and a transfer of interest in the property—an incidence of heritability is easily discernible from the tenancy created either under a statute or a contract. Right in such a tenancy is ordinarily heritable, though this right is limited “to enjoy” and occupy the property only and the tenant is liable to be ejected.
Pradhip Das alias Shambhu & others vs Kazal Das Sarma & others 44 DLR (AD) 1.
Section 105—
BFDC is a
lessee under the government in respect of the disputed stalls to run a fair price fish selling centre there and in pursuance thereof they appointed the petitioner as a commission agent to sell such· fish at those stalls. The Court is justified in holding that the petitioner is a licensee under the BFDC who has the legal authority to revoke such licence.
Habibur Rahman (Md) vs Government of Bangladesh and ors 51 DLR (AD) 39.
Section 105—
The trial
Court has not committed any illegality in declaring that the plaintiff was entitled to inherit the leasehold right in the shop as it is now well settled that monthly tenancy is heritable.
Islamic Foundation Bangaldesh vs Firoz Alam and others 51 DLR 141.
Section 105—
Since a
co-sharer of a vested property has a preferential claim to lease than the stranger, in the instant case, the petitioner having claimed right and title in the case land and being admittedly in possession, there is no illegality in the impugned judgment.
Government of Bangladesh and others vs Nidhi Ram Moni and others 54 DLR (AD) 14.
Sections 105 & 106—
Lease is
created under section 105 and as such statutory notice must be given under section 106 for termination of tenancy; else no suit for ejectment of a tenant can be filed.
A notice
under section 106 of the Transfer of Property Act is mandatory in all cases of eviction under the Ordinance as well, because a tenancy is created under the Transfer of Property Act and Contract Act and those two Acts are not entirely excluded by the provisions of the Ordinance. The Ordinance has not excluded the operation of section 106 of the Transfer of Property Act either expressly or by implication. That is the basic reason why a notice under section I 06 of the Transfer of Property Act is mandatory in a case of eviction under the Ordinance.
Abdul Aziz vs Abdul Mazid 46 DLR (AD) 121.
Sections 105, 106, & 111—
Lease,
creation of—Its duration—Lease is a right only of occupation of an immovable property for a certain time. Transfer from one person to another creates this right. A lease whatever may be its purpose or duration, year to year or month to month, is created only under section 105. This section does not say that a lease for an agricultural purpose or manufacturing purpose shall always be a lease from year to year, or a lease for any other purpose shall always be a lease from month to month. Section 111 shows different ways and grounds for determination of a lease—death of the lessee has not been mentioned as a ground
for its determination. In the decision of this Court reported in 32 DLR (AD) 171 a distinction was made between a lease under section 105 and a lease under section 106 whereas these two sections do not appear to say so.
Pradhip Das alias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1.
Sections 105, 106 & 111—
Lease,
creation of—Its duration—lease is a right only of occupation of an immovable property for a certain time. This right is created by transfer from one person to another. A lease whatever may be its purpose or duration, year to year or month to month, is created only under section 105. This section does not say that a lease for an agricultural purpose or manufacturing purpose shall always be a lease from year to year, or a lease for any other purpose shall always be a lease from month to month. Section 111 shows different ways and grounds for determination of a lease—sdeath of the lessee has not been mentioned as a ground for its determination. In the decision of this Court reported in 32 DLR (AD) 171 a distinction was made between a lease under section I 05 and a lease under section I 06 whereas these two sections do not appear to say so.
Pradhip Das
alias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1.
Sections 105k &106—
Where a
lease is lawfully determined under section I 06 or otherwise for breach of any express condition entitling the lessor to re—enter, the lessee then could only be evicted by a suit after service of a notice under section 114A of the Act. Not otherwise.
Sultan Mahmud Chy vs Ministry of Public Works and Urban Development and ors 56 DLR 269.