THE TRANSFER OF
PROPERTY ACT, 1882
(ACT NO. IV OF
1882).
[17th February, 1882 ]
2 An Act to amend the law relating to the
Transfer of Property by Act of Parties.
Preamble WHEREAS it is expedient to define and
amend certain parts of the law relating to the transfer of property by act of
parties; It is hereby enacted as follows:-
CHAPTER I
PRELIMINARY
Short title
1. This Act may be called the Transfer of Property Act, 1882.
Commencement It shall come into force on the first day of
July, 1882.
Extent
3[ It extends to the whole of Bangladesh
Repeal of Acts Saving of certain enactments,
incidents, rights, liabilities, etc 2.
4[ Nothing herein contained shall be deemed to affect]-
(a) the provisions
of any enactment not hereby expressly repealed:
(b) any terms or
incidents of any contract or constitution of property which are consistent with
the provisions of this Act, and are allowed by the law for the time being in
force:
(c) any right or
liability arising out of a legal relation constituted before this Act comes
into force, or any relief in respect of any such right or liability: or
(d) save as
provided by section 57 and Chapter IV of this Act, any transfer by operation of
law or by, or in execution of, a decree or order of a Court of competent
jurisdiction:
and nothing in the
second chapter of this Act shall be deemed to affect any rule of 5[ Muslim]
law.
Interpretation-clause
3. In this Act,
unless there is something repugnant in the subject or context,-
“immoveable
property” does not include standing timber, growing crops or grass:
“instrument” means
a non-testamentary instrument:
“attested”, in
relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the executant sign or
affix his mark to the instrument, or has seen some other person sign the
instrument in the presence and by the direction of the executant, or has
received from the executant a personal acknowledgement of his signature or
mark, or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be necessary that
more than one of such witnesses shall have been present at the same time, and
no particular form of attestation shall be necessary:
“registered” means
registered in 6[ Bangladesh
“attached to the
earth” means-
(a) rooted in the
earth, as in the case of trees and shrubs;
(b) imbedded in
the earth, as in the case of walls or buildings; or
(c) attached to
what is so imbedded for the permanent beneficial enjoyment of that to which it
is attached:
“Actionable claim”
means a claim to any debt, other than a debt secured by mortgage of immoveable
property or by hypothecation or pledge of moveable property, or to any
beneficial interest in moveable property not in the possession, either actual
or constructive, of the claimant, which the Civil Courts recognize as affording
grounds for relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent:
“a person is said
to have notice” of a fact when he actually knows that fact, or when, but for
wilful abstention from an inquiry or search which he ought to have made, or
gross negligence, he would have known it.
Explanation
I.-Where any transaction relating to immoveable property is required by law to
be and has been effected by a registered instrument, any person acquiring such
property or any part of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration or, where
the property is not all situated in one sub-district, or where the registered
instrument has been registered under sub-section (2) of section 30 of the
Registration Act, 1908, from the earliest date on which any memorandum of such
registered instrument has been filed by any Sub-Registrar within whose
sub-district any part of the property which is being acquired, or of the
property wherein a share or interest is being acquired, is situated;
Provided that-
(1) the instrument
has been registered and its registration completed in the manner prescribed by
the Registration Act, 1908, and the rules made thereunder,
(2) the instrument
or memorandum has been duly entered or filed, as the case may be, in books kept
under section 51 of that Act, and
(3) the
particulars regarding the transaction to which instrument relates have been
correctly entered in the indexes kept under section 55 of that Act.
Explanation
II.-Any person acquiring any immoveable property or any share or interest in
any such property shall be deemed to have notice of the title, if any, of any
person who is for the time being in actual possession thereof.
Explanation III.-A
person shall be deemed to have had notice of any fact if his agent acquires
notice thereof whilst acting on his behalf in the course of business to which
that fact is material:
Provided that, if
the agent fraudulently conceals the fact, the principal shall not be charged
with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud.
Enactments relating to contracts to be taken
as part of contract Act
4. The chapters and sections of this Act which
relate to contracts shall be taken as part of the Contract Act, 1872.
And sections 54,
paragraphs 2 and 3, 59, 107 and 123 shall be read as supplement to the
Registration Act, 1908.
CHAPTER II
OF TRANSFERS OF
PROPERTY BY ACT OF PARTIES
(A) Transfer of Property, whether moveable or
immoveable
“Transfer of property” defined 5. In the following sections “transfer of
property” means an act by which a living person conveys property, in present or
in future, to one or more other living persons, or to himself, or to himself
and one or more other living persons; and “to transfer property” is to perform
such act.In this section “living person” includes a company or associations or
body of individuals, whether incorporated or not, but nothing herein contained
shall affect any law for the time being in force relating to transfer of
property to or by companies, associations or bodies of individuals.
What may be transferred
6. Property of any
kind may be transferred, except as otherwise provided by this Act or by any
other law for the time being in force.
(a) The chance of
an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like
nature, cannot be transferred.
(b) A mere right
of re-entry for breach of a condition subsequent cannot be transferred to any
one except the owner of the property affected thereby.
(c) An easement
cannot be transferred apart from the dominant heritage.
(d) An interest in
property restricted in its enjoyment to the owner personally cannot be
transferred by him.
(dd) A right to
future maintenance, in whatsoever manner arising, secured or determined, cannot
be transferred.
(e) A mere right
to sue cannot be transferred.
(f) A public
office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.
(g) Stipends
allowed to military, naval, air-force and civil pensioners of the Government
and political pensions cannot be transferred.
(h) No transfer
can be made (1) in so far as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the
meaning of section 23 of the Contract Act, 1872, or (3) to a person legally
disqualified to be transferee.
(i) Nothing in
this section shall be deemed to authorise a tenant having an untrasnferable right
of occupancy, the farmer of an estate in respect of which default has been made
in paying revenue or the lessee of an estate under the management of a Court of
Wards, to assign his interest as such tenant, farmer or lessee.
Persons competent to transfer
7. Every person
competent to contract and entitled to transferable property, or authorised to
dispose of transferable property not his own, is competent to transfer such
property either wholly or in part, and either absolutely or conditionally, in
the circumstances, to the extent and in the manner allowed and prescribed by
any law for the time being in force.
Operation of transfer
8. Unless a
different intention is expressed or necessarily implied, a transfer of property
passes forthwith to the transferee all the interest which the transferor is
then capable of passing in the property, and in the legal incidents thereof.
Such incidents
include, where the property is land, the easements annexed thereto, the rents
and profits thereof accruing after the transfer, and all things attached to the
earth;
and, where the
property is machinery attached to the earth, the moveable parts thereof;
and, where the
property is a house, the easements annexed thereto, the rent thereof accruing
after the transfer, and the locks, keys, bars, doors, windows, and all other
things provided for permanent use therewith;
and, where the
property is a debt or other actionable claim, the securities therefor (except
where they are also for other debts or claims not transferred to the
transferee), but not arrears of interest accrued before the transfer;
and, where the
property is money or other property yielding income, the interest or income
thereof accruing after the transfer takes effect.
Oral transfer
9. A transfer of
property may be made without writing in every case in which a writing is not
expressly required by law.
Condition restraining alienation
10. Where property
is transferred subject to a condition or limitation absolutely restraining the
transferee or any person claiming under him from parting with or disposing of
his interest in the property, the condition or limitation is void, except in
the case of a lease where the condition is for the benefit of the lessor or
those claiming under him : Provided that property may be transferred to or for
the benefit of a woman (not being a Hindu, 7[ Muslim] or Buddhist), so that she
shall not have power during her marriage to transfer or charge the same or her beneficial
interest therein.
Restriction repugnant to interest
created
11. Where, on a
transfer of property, an interest therein is created absolutely in favour of
any person, but the terms of the transfer direct that such interest shall be
applied or enjoyed by him in a particular manner, he shall be entitled to
receive and dispose of such interest as if there were no such direction.
Where any such
direction has been made in respect of one piece of immoveable property for the
purpose of securing the beneficial enjoyment of another piece of such property,
nothing in this section shall be deemed to affect any right which the
transferor may have to enforce such direction or any remedy which he may have
in respect of a breach thereof.
Condition making interest determinable on
insolvency or attempted alienation
12. Where property
is transferred subject to a condition or limitation making any interest
therein, reserved or given to or for the benefit of any person, to cease on his
becoming insolvent or endeavouring to transfer or dispose of the same, such
condition or limitation is void.
Nothing in this
section applies to a condition in a lease for the benefit of the lessor or
those claiming under him.
Transfer for benefit of unborn person
13. Where, on a
transfer of property, an interest therein is created for the benefit of a
person not in existence at the date of the transfer, subject to a prior
interest created by the same transfer, the interest created for the benefit of
such person shall not take effect, unless it extends to the whole of the
remaining interest of the transferor in the property.
Illustration
A transfers
property of which he is the owner to B in trust for A and his intended wife
successively for their lives, and, after the death of the survivor, for the
eldest son of the intended marriage for life, and after his death for A's
second son. The interest so created for the benefit of the eldest son does not
take effect, because it does not extend to the whole of A's remaining interest
in the property.
Rule against perpetuity
14. No transfer of
property can operate to create an interest which is to take effect after the
life-time of one or more persons living at the date of such transfer, and the
minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the interest created is to belong.
Transfer to class some of whom come under
sections 13 and 14
15. If, on a transfer
of property, an interest therein is created for the benefit of a class of
persons with regard to some of whom such interest fails by reason of any of the
rules contained in sections 13 and 14, such interest fails in regard to those
persons only and not in regard to the whole class.
Transfer to take effect on failure of prior
interest
16. Where, by
reason of any of the rules contained in sections 13 and 14, an interest created
for the benefit of a person or of a class of persons fails in regard to such
person or the whole of such class, any interest created in the same transaction
and intended to take effect after or upon failure of such prior interest also
fails.
Direction for accumulation
17. (1) Where the terms
of a transfer of property direct that the income arising from the property
shall be accumulated either wholly or in part during a period longer than-
(a) the life of
the transferor, or
(b) a period of
eighteen years from the date of the transfer, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which
the accumulation is directed exceeds the longer of the aforesaid periods, and
at the end of such last-mentioned period the property and the income thereof
shall be disposed of as if the period during which the accumulation has been
directed to be made had elapsed.
(2) This section
shall not affect any direction for accumulation for the purpose of-
(i) the payment of
the debts of the transferor or any other person taking any interest under the
transfer, or
(ii) the provision
of portions for children or remoter issue of the transferor or of any other
person taking any interest under the transfer, or
(iii) the
preservation or maintenance of the property transferred; and such direction may
be made accordingly.
Transfer in perpetuity for benefit of
public
18. The
restrictions in sections 14, 16 and 17 shall not apply in the case of a
transfer of property for the benefit of the public in the advancement of
religion, knowledge, commerce, health, safety, or any other object beneficial
to mankind.
Vested interest
19. Where, on a
transfer of property, an interest therein is created in favour of a person
without specifying the time when it is to take effect, or in terms specifying
that it is to take effect forthwith or on the happening of an event which must
happen, such interest is vested, unless a contrary intention appears from the
terms of the transfer.
A vested interest
is not defeated by the death of the transferee before he obtains possession.
Explanation.-An
intention that an interest shall not be vested is not to be inferred merely
from a provision whereby the enjoyment thereof is postponed, or whereby a prior
interest in the same property is given or reserved to some other person, or
whereby income arising from the property is directed to be accumulated until
the time of enjoyment arrives, or from a provision that if a particular event
shall happen the interest shall pass to another person.
When unborn person acquires vested interest
on transfer for his benefit
20. Where, on a
transfer of property, an interest therein is created for the benefit of a
person not then living, he acquires upon his birth, unless a contrary intention
appear from the terms of the transfer, a vested interest, although he may not
be entitled to the enjoyment thereof immediately on his birth.
Contingent interest
21. Where, on a
transfer of property, an interest therein is created in favour of a person to
take effect only on the happening of a specified uncertain event, or if a
specified uncertain event shall not happen, such person thereby acquires a
contingent interest in the property. Such interest becomes a vested interest,
in the former case, on the happening of the event, in the latter, when the
happening of the event becomes impossible.
Exception.-Where,
under a transfer of property, a person becomes entitled to an interest therein
upon attaining a particular age, and the transferor also gives to him
absolutely the income to arise from such interest before he reaches that age,
or directs the income or so much thereof as may be necessary to be applied for
his benefit, such interest is not contingent.
Transfer to members of a class who attain a
particular age
22. Where, on a
transfer of property, an interest therein is created in favour of such members
only of a class as shall attain a particular age, such interest does not vest
in any member of the class who has not attained that age.
Transfer contingent on happening of specified
uncertain event
23. Where, on
transfer of property, an interest therein is to accrue to a specified person if
a specified uncertain event shall happen, and no time is mentioned for the
occurrence of that event, the interest falls unless such event happens before,
or at the same time as, the intermediate or precedent interest ceases to exist.
Transfer to such of certain persons as
survive at some period not specified
24. Where, on a
transfer of property, an interest therein is to accrue to such of certain
persons as shall be surviving at some period, but the exact period is not
specified, the interest shall go to such of them as shall be alive when the
intermediate or precedent interest ceases to exist, unless a contrary intention
appears from the terms of the transfer.
Illustration
A transfers
property to B for life, and after his death to C and D, equally to be divided
between them, or to the survivor of them. C dies during the life of B. D
survives B. At B's death the property passes to D.
Conditional transfer
25. An interest
created on a transfer of property and dependent upon a condition fails if the
fulfilment of the condition is impossible, or is forbidden by law, or is of
such a nature that, if permitted, it would defeat the provisions of any law, or
is fraudulent, or involves or implies injury to the person or property of
another, or the Court regards it as immoral or opposed a public policy.
Illustrations
(a) A lets a farm
to B on condition that he shall walk a hundred miles in an hour. The lease is
void.
(b) A gives Tk.
500 to B on condition that he shall marry A's daughter C. At the date of the
transfer C was dead. The transfer is void.
(c) A transfers
Tk. 500 to B on condition that she shall murder C. The transfer is void.
(d) A transfers
Tk. 500 to his niece C if she will desert her husband. The transfer is void.
Fulfilment of condition precedent
26. Where the
terms of a transfer of property impose a condition to be fulfilled before a
person can take an interest in the property, the condition shall be deemed to
have been fulfilled if it has been substantially complied with.
Illustrations
(a) A transfers
Tk. 5,000 to B on condition that he shall marry with the consent of C, D and E.
E dies. B marries with the consent of C and D. B is deemed to have fulfilled
the conditions.
(b) A transfers
Tk. 5,000 to B on condition that he shall marry with the consent of C, D and E.
B marries without the consent of C, D and E, but obtains their consent after
the marriage. B has not fulfilled the condition.
Conditional transfer to one person coupled
with transfer to another on failure of prior disposition
27. Where, on a
transfer of property, an interest therein is created in favour of one person,
and by the same transaction an ulterior disposition of the same interest is
made in favour of another, if the prior disposition under the transfer shall
fail, the ulterior disposition shall take effect upon the failure of the prior
disposition, although the failure may not have occurred in the manner
contemplated by the transferor.
But, where the
intention of the parties to the transaction is that the ulterior disposition
shall take effect only in the event of the prior disposition failing in a
particular manner, the ulterior disposition shall not take effect unless the
prior disposition fails in that manner.
Illustrations
(a) A transfers
Tk. 500 to B on condition that he shall execute a certain lease within three
months after A's death, and, if he should neglect to do so, to C. B dies in A's
life-time. The disposition in favour of C takes effect.
(b) A transfers
property to his wife; but, in case she should die in his life-time, transfers
to B that which he had transferred to her. A and his wife perish together,
under circumstances which make it impossible to prove that she died before him.
The disposition in favour of B does not take effect.
Ulterior transfer conditional on happening or
not happening of specified event
28. On a transfer
of property an interest therein may be created to accrue to any person with the
condition superadded that in case a specified uncertain event shall happen such
interest shall pass to another person, or that in case a specified uncertain
event shall not happen such interest shall pass to another person. In each case
the dispositions are subject to the rules contained in sections 10, 12, 21, 22,
23, 24, 25 and 27.
Fulfilment of condition subsequent
29. An ulterior
disposition of the kind contemplated by the last preceding section cannot take
effect unless the condition is strictly fulfilled.
Illustration
A transfers Tk.
500 to B, to be paid to him on his attaining his majority or marrying, with a
proviso that, if B dies a minor or marries without C's consent, the Tk. 500
shall go to D. B marries when only 17 years of age, without C's consent. The
transfer to D takes effect.
Prior disposition not affected by invalidity
of ulterior disposition
30. If the
ulterior disposition is not valid, the prior disposition is not affected by it.
Illustration
A transfer a farm
B for her life, and, if she do not desert her husband, to C. B is entitled to
the farm during her life as if no condition had been inserted.
Condition that transfer shall cease to have
effect in case specified uncertain event happens or does not happen
31. Subject to the
provisions of section 12, on a transfer of property an interest therein may be
created with the condition superadded that it shall cease to exist in case a
specified uncertain event shall happen, or in case a specified uncertain event
shall not happen.
Illustrations
(a) A transfers a
farm to B for his life, with a proviso that, in case B cuts down a certain
wood, the transfer shall cease to have any effect. B cuts down the wood. He
loses his life-interest in the farm.
(b) A transfers a
farm to B, provided that, if B shall not go to England England
Such condition must not be invalid 32. In order that a condition that an
interest shall cease to exist may be valid, it is necessary that the event to
which it relates be one which could legally constitute the condition of the
creation of an interest.
Transfer conditional on performance of act,
no time being specified for performance
33. Where, on a
transfer of property, an interest therein is created subject to a condition
that the person taking it shall perform a certain act, but no time is specified
for the performance of the act, the condition is broken when he renders
impossible, permanently or for an indefinite period, the performance of the
act.
Transfer conditional on performance of act,
time being specified
34. Where an act
is to be performed by a person either as a condition to be fulfilled before an
interest created on a transfer of property is enjoyed by him, or as a condition
on the non-fulfilment of which the interest is to pass from him to another
person, and a time is specified for the performance of the act, if such
performance within the specified time is prevented by the fraud of a person who
would be directly benefited by non-fulfilment of the condition, such further
time shall as against him be allowed for performing the act as shall be
requisite to make up for the delay caused by such fraud. But if no time is
specified for the performance of the act, then, if its performance is by the
fraud of a person interested in the non-fulfilment of the condition rendered
impossible or indefinitely postponed, the condition shall as against him be
deemed to have been fulfilled.
Election
Election when necessary
35. Where a person
professes to transfer property which he has no right to transfer, and as part of
the same transaction confers any benefit on the owner of the property, such
owner must elect either to confirm such transfer or to dissent from it; and in
the latter case he shall relinquish the benefit so conferred, and the benefit
so relinquished shall revert to the transferor or his representative as if it
had not been disposed of, subject nevertheless, where the transfer is
gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer, and in all cases where the
transfer is for consideration, to the charge of making good to the disappointed
transferee the amount or value of the property attempted to be transferred to
him.
Illustrations
The farm of Ulipur
is the property of C and worth Tk. 800. A by an instrument of gift professes to
transfer it to B, giving by the same instrument Tk. 1,000 to C. C elects to
retain the farm. He forfeits the gift of Tk. 1,000.
In the same case,
A dies before the election. His representative must out of the Tk. 1,000 pay
(Tk.) 800 to B.
The rule in the
first paragraph of this section applies whether the transferor does or does not
believe that which he professes to transfer to be his own.
A person taking no
benefit directly under a transaction, but deriving a benefit under it
indirectly, need not elect.
A person who in
his one capacity takes a benefit under the transaction may in another dissent
therefrom.
Exception to the
last preceding four rules.Where a particular benefit is expressed to be
conferred on the owner of the property which the transferor professes to
transfer, and such benefit is expressed to be in lieu of that property, if such
owner claim the property, he must relinquish the particular benefit, but he is
not bound to relinquish any other benefit conferred upon him by the same
transaction.
Acceptance of the
benefit by the person on whom it is conferred constitutes an election by him to
confirm the transfer, if he is aware of his duty to elect and of those
circumstances which would influence the judgment of a reasonable man in making
an election, or if he waives enquiry into the circumstances.
Such knowledge or
waiver shall, in the absence of evidence to the contrary, be presumed, if the
person on whom the benefit has been conferred has enjoyed it for two years
without doing any act to express dissent.
Such knowledge or
waiver may be inferred from any act of his which renders it impossible to place
the persons interested in the property professed to be transferred in the same
condition as if such act had not been done.
Illustration
A transfers to B
an estate to which C is entitled, and as part of the same transaction gives C a
coal-mine. C takes possession of the mine and exhausts it. He has thereby
confirmed the transfer of the estate to B.
If he does not
within one year after the date of the transfer signify to the transferor or his
representatives his intention to confirm or to dissent from the transfer, the
transferor or his representatives may, upon the expiration of that period,
require him to make his election; and, if he does not comply with such
requisition within a reasonable time after he has received it, he shall be
deemed to have elected to confirm the transfer.
In case of
disability, the election shall be postponed until the disability ceases, or
until the election is made by some competent authority.
Apportionment
Apportionment of periodical payments on
determination of interest of person entitled
36. In the absence
of a contract or local usage to the contrary, all rents, annuities, pensions,
dividends and other periodical payments in the nature of income shall, upon the
transfer of the interest of the person entitled to receive such payments, be
deemed, as between the transferor and the transferee, to accrue due from day to
day, and to be apportionable accordingly, but to be payable on the days
appointed for the payment thereof.
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