—Scope—Gives
protection to transferee—Does not transfer title to property in the absence of registration.
All that
section 53A, Transfer of Property Act, 1882 does is to protect the transferee against the transferor or any person claiming under him from enforcing any right in respect of the property notwithstanding the fact that the contract, though required to be registered, had not been registered or where there is an instrum net of transfer the same has not been completed in the manner prescribed thereof by the law for the time being in force. This protection is given to the transferee upon the fulfillment of the condition set Out in that section and upon the principle that equity looks on that as done which ought to
& done. If the transferee is ready and willing to do all that he is required to do under the contract, it should not lie in the mouth of the transferor or any one flaming through him to plead absence of registration or compliance with other formalities to get out of his own obligation under the contract. This section nowhere professes to transfer the title to the purchaser.
PT Co-op. Housing
Society Ld. Vs. Manzoor Ahmed PLD 1961 (WP) Karachi 53 (Faruqui, J).
—Transfer by
unregistered deed where it should have been registered—Transferor cannot enforce any rights under the deed— Transferee may sue for specific performance of contract of sale.
Under
section 53A, a person who had made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. When a transferee by means of a document which has not been
registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the tide of anyone else. Therefore the transferee can sue for the enforcement of a contract of sale even when it is not duly registered.
Inayat Ullah
Vs. Shah Muhammad PLD 1961 (WP) Lahore 372 =PLR 1961(2) WP 525(08) (Shabir, J).
—The vendor
cannot take shelter behind the doctrine embodied in section 53A of the Transferof Property Act. That provision is intended for the benefit of vendees alone so as to protect them against the vendors.
Manzoor
Ahmad Vs. P & T Cooperative housing Society Ltd. PLD 1962 (WP) Karachi 476
(DB). (AnwarullIaq. J).
—Where the
transferee has made part payment of the consideration and is already in possession he is entitled to the protection granted by this section.
Ghulam Hussain
Vs. Ghulam Mohd, PLD 1964 BJ. 19 (UB). (Faruqui. J).
S 54—A contract
of re-conveyance of a property does not create any interest to the property— Rule against perpetuity has no application to an agreement when such agreement does not create any interest in the land.
Abdul Quddus
Vs. Anjuman Khatoon (1984)36 DLR 312.
—Registration
not enough to pass title.
Where there
is neither possession of the property alleged to have been sold, nor any proof of the payment of consideration mere registration of the sale-deed does not operate to pass title to the vendee. Ibrahim
Vs. Sardar Ahmed (1955) 7 DLR (WP) 62.
—It cannot
be laid down a general rule that mere registration of an instrument “without reference to other circumstance operates to transfer the property.
Ainuddin Vs.
Samaddi Hajari (1955) 7 DLR 443.
—Where a deed
the same to a date prior to the date of the execution and registration of the defendant’s document, it cannot be said that mere registration has the effect of transferring title.
Ainuddin Vs.
Samaddi Hajari (1955) 7 DLR 443.
—Although
under section 54 of the Transfer of Property Act a condition of re-purchase does not create an interest or charge on the immovable property concerned, it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor, it is assignable.
If it
appears that the option is given as a matter of grace or favour it will be restricted to the vendor personally and will not be assignable but if it is not induced by any such consideration but in fact a part of the bargain the beneficial interest created by the contract is assignable. I PLR (,Dac) 349.
—According
to this section, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that “price” in this context means” money”, not anything else. 1952 PLR (Lah) 196.
—Conveyance
and contract of sale—Statements in a document which convert it into a sale-deed and not a contract of sale.
Enayet
Hossain
Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466.
—If a vendor
can convey a property without an instrument of sale-deed he can do it and can escape payment of stamp duty.
Enayet
Hussein Chowdhury Vs. Member Board of Revenue (1960)12 DLR 466.
—An
agreement for reconveyance of land is not a right in property.
Abdus Sattar
Mallik Vs. Yunus Mallik (1960) 12 DLR 849.
—A sale may
be complete even if the ingredients of section 54 not complied with.
The mere
failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor’s right in respect of it.
If the
transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation.
Abdul Karim
Vs. Fazal Muhammad Shah (1967) 19 DLR (SC) 477.
—Agreement
for sale of land binds the purchaser at Court sale with notice—the agreement for sale would bind the purchaser at a Court sale if he had notice of the agreement.
Mohiuddin
Mollah Vs. Province of East Pak. (1962)14 DLR (SC) 112.
—A sale of
immoveable property accompanied by an ekrarnama—In case of a sale
of
immoveable property accompanied by an ekrarnama, for the rcconvcyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee.
Jalal Ahmed
Vs. Thoraish Mia (1968) 20 DLR 80.
—Subsequent
registration of Kabalas without payment of consideration money for curingdefects of earlier lease deeds cannot be called sale-deeds and as such pass no title.
The
plaintiff took bandabasta of the Suit property by registered lease deeds. But finding the lease deeds legally defective, the lessors subsequently transferred their interest in the property by registered Kabalas in favour of the plaintiff.
Held: The Kabalas
cannot be called sale-deeds and they pass no title.
Makbul Ahmed
Contractor Vs. Md. Idris (1969) 21 DLR 511.
—‘Sale’
explained.
Sale means a transfer for a fixed or ascertained price and it takes effect in the year in which the price is so fixed for till then there is no sale and the asset, unless destroyed, demolished or discarded, continues to be deemed to be in the use of the assesses.
M/s.
Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer,
(1970) 22 DLR (SC) 443.
—Mere
execution and registration of a sale-deed ipso facto does not pass title to the purchaser. Intention is consideration paramount and it can be inferred from circumstances.
Mahar Ali
Mathar. Vs. Daliluddin Chowkidar (1979) 31 DLR 392.
—Right of
reconveyance a transferable Right.
A right to
reconveyance cannot but be assignable, unless the terms of the contract manifest an intention to restrict the right to the transferor personally.