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.
Apportionment of benefit of obligation on
severance
37. When, in
consequence of a transfer, property is divided and held in several shares, and
thereupon the benefit of any obligation relating to the property as a whole
passes from one to several owners of the property, the corresponding duty
shall, in the absence of a contract to the contrary amongst the owners, be
performed in favour of each of such owners in proportion to the value of his
share in the property, provided that the duty can be severed and that the
severance does not substantially increase the burden of the obligation; but if
the duty cannot be severed, or if the severance would substantially increase
the burden of the obligation, the duty shall be performed for the benefit of
such one of the several owners as they shall jointly designate for that
purpose:
Provided that no
person on whom the burden of the obligation lies shall be answerable for
failure to discharge it in manner provided by this section, unless and until he
has had reasonable notice of the severance.
Nothing in this
section applies to leases for agricultural purposes unless and until the
Government by notification in the official Gazette so directs.
Illustrations
(a) A sells to B,
C and D a house situate in a village and leased to E at an annual rent of Tk.
30 and delivery of one fat sheep, B having provided half the purchase-money and
C and D one-quarter each. E, having notice of this, must pay Tk. 15 to B, Tk.
7½ to C, and Tk. 7½ to D, and must deliver the sheep according to the joint
direction of B, C and D.
(b) In the same
case, each house in the village being bound to provide ten days' labour each
year on a dyke to prevent inundation, E had agreed as a term of his lease to
perform this work for A. B, C and D severally require E to perform the ten
days' work due on account of the house of each. E is not bound to do more than
ten days, work in all, according to such directions as B, C and D may join in
giving.
(B) Transfer of Immoveable Property
Transfer by person authorised only under
certain circumstances to transfer
38. Where any
person, authorised only under circumstances in their nature variable to dispose
of immoveable property, transfers such property for consideration, alleging the
existence of such circumstances, they shall, as between the transferee on the
one part and the transferor and other persons (if any) affected by the transfer
on the other part, be deemed to have existed, if the transferee, after using
reasonable care to ascertain the existence of such circumstances, has acted in
good faith.
Illustration
A, a Hindu widow,
whose husband has left collateral heirs, alleging that the property held by her
as such is insufficient for her maintenance, agrees, for purposes neither
religious nor charitable, to sell a field, part of such property, to B. B
satisfies himself by reasonable enquiry that the income of the property is
insufficient for A's maintenance, and that the sale of the field is necessary,
and, acting in good faith, buys the field from A. As between B on the one part
and A and the collateral heirs on the other part, a necessity for the sale
shall be deemed to have existed.
Transfer where third person is entitled to
maintenance
39. Where a third
person has a right to receive maintenance, or a provision for advancement or
marriage, from the profits of immoveable property, and such property is
transferred the right may be enforced against the transferee, if he has notice
thereof or if the transfer is gratuitous; but not against a transferee for
consideration and without notice of the right, nor against such property in his
hands.
Burden of obligation imposing restriction on
use of land, or of obligation annexed to ownership but not amounting to
interest or easement
40. Where, for the
more beneficial enjoyment of his own immoveable property, a third person has,
independently of any interest in the immoveable property of another or of any
easement thereon, a right to restrain the enjoyment in a particular manner of
the latter property, or where a third person is entitled to the benefit of an
obligation arising out of contract and annexed to the ownership of immoveable
property, but not amounting to an interest therein or easement thereon, such
right or obligation may be enforced against a transferee with notice thereof or
a gratuitous transferee of the property affected thereby, but not against a
transferee for consideration and without notice of the right or obligation, nor
against such property in his hands.
Illustration
A contracts to
sell Ulipur to B. While the contract is still in force he sells Ulipur to C,
who has notice of the contract. B may enforce the contract against C to the
same extent as against A.
Transfer by ostensible owner
41. Where, with
consent, express or implied, of the persons interested in immoveable property,
a person is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the
transferor was not authorised to make it: provided that the transferee, after taking
reasonable care to ascertain that the transferor had power to make the
transfer, has acted in good faith.
Transfer by person having authority to revoke
former transfer
42. Where a person transfers any immoveable
property, reserving power to revoke the transfer, and subsequently transfers
the property for consideration to another transferee, such transfer operates in
favour of such transferee (subject to any condition attached to the exercise of
the power) as a revocation of the former transfer to the extent of the power.
Illustration
A lets a house to
B, and reserves power to revoke the lease if, in the opinion of a specified
surveyor, B should make a use of it detrimental to its value. Afterwards A,
thinking that such a use has been made, lets the house to C. This operates as a
revocation of B's lease subject to the opinion of the surveyor as to B's use of
the house having been detrimental to its value.
CHAPTER VI
OF EXCHANGES
Rights and liabilities of parties 120. Save as otherwise provided in this
Chapter, each party has the rights and is subject to the liabilities of a
seller as to that which he gives, and has the rights and is subject to the
liabilities of a buyer as to that which he takes.
CHAPTER II
OF TRANSFERS OF
PROPERTY BY ACT OF PARTIES
(B) Transfer of Immoveable Property
Transfer by unauthorised person who
subsequently acquires interest in property transferred
43. Where a person
fraudulently or erroneously represents that he is authorised to transfer
certain immoveable property and professes to transfer such property for
consideration, such transfer shall, at the option of the transferee, operate on
any interest which the transferor may acquire in such property at any time
during which the contract of transfer subsists.
Nothing in this
section shall impair the right of transferees in good faith for consideration
without notice of the existence of the said option.
Illustration
A, a Hindu, who
has separated from his father B, sales to C three fields, X, Y and Z,
representing that A is authorised to transfer the same. Of these fields Z does
not belong to A, it having been retained by B on the partition; but on B's
dying A as heir obtains Z. C, not having rescinded the contract of sale, may
require A to deliver Z to him.
Transfer by one co- owner
44. Where one of two or more co-owners of
immoveable property legally competent in that behalf transfers his share of
such property or any interest therein, the transferee acquires, as to such
share or interest, and so far as is necessary to give effect to the transfer,
the transferor's right to joint possession or other common or part enjoyment of
the property, and to enforce a partition of the same, but subject to the
conditions and liabilities affecting, at the date of the transfer, the share or
interest so transferred.
Where the
transferee of a share of a dwelling-house belonging to an undivided family is
not a member of the family, nothing in this section shall be deemed to entitle
him to joint possession or other common or part enjoyment of the house.
Joint transfer for consideration
45. Where
immoveable property is transferred for consideration to two or more persons,
and such consideration is paid out of a fund belonging to them in common, they
are, in the absence of a contract to the contrary, respectively entitled to
interests in such property identical, as nearly as may be, with the interests
to which they where respectively entitled in the fund; and, where such
consideration is paid out of separate funds belonging to them respectively,
they are, in the absence of a contract to the contrary, respectively entitled
to interest in such property in proportion to the shares of the consideration
which they respectively advanced.
In the absence of
evidence as to the interests in the fund to which they were respectively
entitled, or as to the shares which they respectively advanced, such persons
shall be presumed to be equally interested in the property.
Transfer for consideration by persons having
distinct interests
46. Where immoveable property is transferred
for consideration by persons having distinct interests therein, the transferors
are, in the absence of a contract to the contrary, entitled to share in the
consideration equally, where their interest in the property were of equal
value, and, where such interests were of unequal value, proportionately to the
value of their respective interests.
Illustrations
(a) A, owning a
moiety, and B and C each a quarter share, of mauza Ulipur, exchange an eighth
share of that mauza for a quarter share of mauza Mithapukur. There being no
agreement to the contrary, A is entitled to an eighth share in Mithapukur, and
B and C each to a sixteenth share in that mauza.
(b) A, being
entitled to a life-interest in mauza Jalkothi and B and C to the reversion,
sell the mauza for Tk. 1,000. A's life-interest ascertained to be worth Tk.
600, the reversion Tk. 400. A is entitled to receive Tk. 600 out of the
purchase-money, B and C to receive Tk. 400.
Transfer by co-owners of share in common
property
47. Where several
co-owners of immoveable property transfer a share therein without specifying
that the transfer is to take effect on any particular share or shares of the
transferors, the transfer, as among such transferors, takes effect on such
shares equally where the shares were equal, and, where they were unequal,
proportionately to the extent of such shares.
Illustration
A, the owner of an
eight-anna share, and B and C, each the owner of a four-anna share, in mauza
Ulipur, transfer a two-anna share in the mauza to D, without specifying from
which of their several shares the transfer is made. To give effect to the
transfer one-anna share is taken from the share of A, and half an anna share
from each of the shares of B and C.
Priority of rights created by transfer
48. Where a person
purports to create by transfer at different times rights in or over the same
immoveable property, and such rights cannot all exist or be exercised to their
full extent together, each later created right shall, in the absence of a
special contract or reservation binding the earlier transferees, be subject to
the rights previously created.
Transferee’s right under policy
49. Where
immoveable property is transferred for consideration, and such property or any
part thereof is at the date of the transfer insured against loss or damage by
fire, the transferee, in case of such loss or damage, may, in the absence of a
contract to the contrary, require any money which the transferor actually
receives under the policy, or so much thereof as may be necessary, to be
applied in reinstating the property.
Rent bona fide paid to holder under defective
title
50. No person
shall be chargeable with any rents or profits of any immoveable property, which
he has in good faith paid or delivered to any person of whom he in good faith
held such property, notwithstanding it may afterwards appear that the person to
whom such payment or delivery was made had no right to receive such rents or
profits.
Illustration
A lets a field to
B at a rent of Tk. 50, and then transfers the field to C. B, having no notice
of the transfer, in good faith pays the rent to A. B is not chargeable with the
rent so paid.
Improvements made by bona fide holders under
defective titles
51. When the
transferee of immoveable property makes any improvement on the property,
believing in good faith that he is absolutely entitled thereto, and he is
subsequently evicted therefrom by any person having a better title, the
transferee has a right to require the person causing the eviction either to
have the value of the improvement estimated and paid or secured the transferee,
or to sell his interest in the property to the transferee at the then market
value thereof, irrespective of the value of such improvement.
The amount to be
paid or secured in respect of such improvement shall be the estimated value
thereof at the time of the eviction.
When, under the
circumstances aforesaid, the transferee has planted or sown on the property
crops which are growing when he is evicted therefrom, he is entitled to such
crops and to free ingress and egress to gather and carry them.
Transfer of property pending suit relating
thereto
52. During the
pendency in any Court 8[ in Bangladesh], of any suit or proceeding which is not
collusive and in which any right to immoveable property is directly and specifically
in question, the property cannot be transferred or otherwise dealt with by any
party to the suit or proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made therein, except under the
authority of the Court and on such terms as it may impose.
Explanation.-For
the purposes of this section, the pendency of a suit or proceeding shall be
deemed to commence from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a final decree or
order and complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of any period
of limitation prescribed for the execution thereof by any law for the time
being in force.
Fraudulent transfer
53.(1) Every
transfer of immoveable property made with intent to defeat or delay the
creditors of the transferor shall be voidable at the option of any creditor so
defeated or delayed.
Nothing in this
sub-section shall impair the rights of a transferee in good faith and for
consideration.
Nothing in this
sub-section shall affect any law for the time being in force relating to
insolvency.
A suit instituted
by a creditor (which term includes a decree-holder whether he has or has not
applied for execution of his decree) to avoid a transfer on the ground that it
has been made with intent to defeat or delay the creditors of the transferor,
shall be instituted on behalf, or for the benefit of, all the creditors.
(2) Every transfer
of immoveable property made without consideration with intent to defraud a
subsequent transferee shall be voidable at the option of such transferee.
For the purposes
of this sub-section, no transfer made without consideration shall be deemed to
have been made with intent to defraud by reason only that a subsequent transfer
for consideration was made.
Part performance
9[ 53A. Where any
person contracts to transfer for consideration any immoveable property by
writing signed by him or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable certainty, and the
transferee has, in part performance of the contract, taken possession of the
property or any part thereof, or the transferee, being already in possession,
continues in possession in part performance of the contract and has done some
act in furtherance of the contract,
and the transferee
has performed or is willing to perform his part of the contract,
then, 10[ * * *]
where there is an instrument of transfer, that the transfer has not been
completed in the manner prescribed therefore by the law for the time being in
force, the transferor or any person claiming under him shall be debarred from
enforcing against the transferee and persons claiming under him any right in
respect of the property of which the transferee has taken or continued in
possession, other than a right expressly provided by the terms of the contract:
Provided that
nothing in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the part performance
thereof.]
Immoveable Property under a contract for sale
not to be transferred
11[ 53B. No
immoveable property under a contract for shall be transferred except to the
vendee so long the contract subsists, unless the contract is lawfully
rescinded, and any transfer made otherwise shall be void.
Immoveable Property without Khatian not to be
sold
53C. No immoveable
property shall be sold by a person unless his name, if he is the owner of the
property otherwise than by inheritance, or his name or the name of his predecessor,
if he is the owner of the property by inheritance, appears in respect of the
property in the latest khatian prepared under the State Acquisition and Tenancy
Act, 1950, and any sale made otherwise shall be void.
Immoveable Property under mortgage not to be
transferred
53D. No immoveable
property under registered mortgage shall be re-mortgaged or sold without the
written consent of the mortgagee, and any re-mortgage or sale made otherwise
shall be void.
Instrument of transfer to be supported by
affidavit 53E. Every instrument of
sale, gift, mortgage and declaration of heba of any immoveable property shall
be supported by an affidavit by the executant affirming that he has lawful
title to the property.]
CHAPTER III
OF SALES OF
IMMOVEABLE PROPERTY
“Sale
54. “Sale
13[ * * *].
Delivery of
tangible immoveable property takes place when the seller places the buyer, or
such person as he directs, in possession of the property.
Contract for sale A contract for the sale of immoveable
property is a contract that a sale of such property shall take place on terms
settled between the parities.
It does not, of
itself, create any interest in or charge on such property.
Contract for sale to be registered, etc
14[ 54A.
Notwithstanding anything to the contrary contained in this Act or any other law
for the time being in force, a contract for sale of any immoveable property can
be made only by an instrument in writing and registered under the Registration
Act, 1908, whether or not the transferee has taken possession of the property
or any part thereof.
In a contract for
sale of any immoveable property, a time, to be effective from the date of
registration, shall be mentioned for execution and registration of the
instrument of sale, and if no time is mentioned, six months shall be deemed to
be the time.]
Rights and liabilities of buyer and
seller
55. In the absence
of a contract to the contrary, the buyer and the seller of immoveable property
respectively are subject to the liabilities, and have the rights, mentioned in
the rules next following, or such of them as are applicable to the property sold:
(1) The seller is
bound-
(a) to disclose to
the buyer any material defect in the property or in the seller's title thereto
of which the seller is, and the buyer is not, aware, and which the buyer could
not with ordinary care discover;
(b) to produce to
the buyer on his request for examination all documents of title relating to the
property which are in the seller's possession or power;
(c) to answer to
the best of his information all relevant questions put to him by the buyer in
respect to the property or the title thereto;
(d) on payment or
tender of the amount due in respect of the price, to execute a proper
conveyance of the property when the buyer tenders it to him for execution at a
proper time and place;
(e) between the
date of the contract of sale and the delivery of the property, to take as much
care of the property and all documents of title relating thereto which are in
his possession as an owner of ordinary prudence would take of such property and
documents;
(f) to give, on
being so required, the buyer, or such person as he directs, such possession of
the property as its nature admits;
(g) to pay all
public charges and rent accrued due in respect of the property up to the date
of the sale, the interest on all incumbrances on such property due on such
date, and, except where the property is sold subject to incumbrances, to
discharge all incum-brances on the property then existing.
(2) The seller
shall be deemed to contract with the buyer that the interest which the seller
professes to transfer to the buyer subsists and that he has power to transfer
the same:
Provided that,
where the sale is made by a person in a fiduciary character, he shall be deemed
to contract with the buyer that the seller has done no act whereby the property
is incumbered or whereby he is hindered from transferring it.
The benefit of the
contract mentioned in this rule shall be annexed to, and shall go with, the
interest of the transferee as such, and may be enforced by every person in whom
that interest is for the whole or any part thereof from time to time vested.
(3) Where the
whole of the purchase-money has been paid to the seller, he is also bound to
deliver to the buyer all documents of title relating to the property which are
in the seller's possession or power:
Provided that, (a)
where the seller retains any part of the property comprised in such documents,
he is entitled to retain them all, and, (b) where the whole of such property is
sold to different buyers, the buyer of the lot of greatest value is entitled to
such documents. But in case (a ) the seller, and in case (b) the buyer, of the
lot of greatest value, is bound, upon every reasonable request by the buyer, or
by any of the other buyers, as the case may be, and at the cost of the person making
the request, to produce the said documents and furnish such true copies thereof
or extracts therefrom as he may require; and in the meantime, the seller, or
the buyer of the lot of greatest value, as the case may be, shall keep the said
documents safe, uncancelled and undefased, unless prevented from so doing by
fire or other inevitable accident.
(4) The seller is
entitled-
(a) to the rents
and profits of the property till the ownership thereof passes to the buyer;
(b) where the
ownership of the property has passed to the buyer before payment of the whole
of the purchase-money, to a charge upon the property in the hands of the buyer
any transferee without consideration or any transferee with notice of the
non-payment, for the amount of the purchase-money, or any part thereof
remaining unpaid, and for interest on such amount or part from the date on
which possession has been delivered.
(5) The buyer is
bound-
(a) to disclose to
the seller any fact as to the nature or extent of the seller's interest in the
property of which the buyer is aware but of which he has reason to believe that
the seller is not aware, and which materially increases the value of such
interest;
(b) to pay or
tender, at the time and place of completing the sale, the purchase-money to the
seller or such person as he directs: provided that, where the property is sold
free from incumbrances, the buyer may retain out of the purchase-money the
amount of any incumbrances on the property existing at the date of the sale,
and shall pay the amount so retained to the persons entitled thereto;
(c) where the
ownership of the property has passed to the buyer, to bear any loss arising
from the destruction, injury or decrease in value of the property not caused by
the seller;
(d) where the
ownership of the property has passed to the buyer, as between himself and the
seller, to pay all public charges and rent which may become payable in respect
of the property, the principal moneys due on any incumbrances subject to which
the property is sold, and the interest thereon afterwards accruing due.
(6) The buyer is
entitled-
(a) where the
ownership of the property has passed to him, to the benefit of any improvement
in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has
improperly declined to accept delivery of the property, to a charge on the
property, as against the seller and all persons claiming under him, to the
extent of the seller's interest in the property for the amount of any purchase-money
properly paid by the buyer in anticipation of the delivery and for interest on
such amount; and, when he properly declines to accept the delivery, also for
the earnest (if any) and for the costs (if any) awarded to him of a suit to
compel specific performance of the contract or to obtain a decree for its
rescission.
An omission to
make such disclosures as are mentioned in this section, paragraph (1), clause
(a), and paragraph (5), clause (a), is fraudulent.
Marshalling by subsequent purchaser
56. If the owner
of two or more properties mortgages them to one person and then sells one or
more of the properties to another person, the buyer is in the absence of a
contract to the contrary, entitled to have the mortgage-debt satisfied out of
the property or properties not sold to him, so far as the same will extend, but
not so as to prejudice the rights of the mortgagee or persons claiming under
him or of any other person who has for consideration acquired an interest in
any of the properties.
Discharge of Incumbrances on Sale
Provision by Court for incumbrance and sale
freed therefrom
57. (a) Where
immoveable property subject to any incumbrance, whether immediately payable or
not, is sold by the Court, or in execution of a decree, or out of Court, the
Court may, if it thinks fit, on the application of any party to the sale,
direct or allow payment into Court,-
(1) in case of an
annual or monthly sum charged on the property, or of a capital sum charged on a
determinable interest in the property – of such amount as, when invested in
securities of the Government, the Court considers will be sufficient, by means
of the interest thereof, to keep down or otherwise provide for that charge, and
(2) in any other
case of a capital sum charged on the property of the amount sufficient to meet
the incumbrance and any interest due thereon.
But in either case
there shall also be paid into Court such additional amount, as the Court
considers will be sufficient to meet the contingency of further costs, expenses
and interest, and any other contingency, except depreciation of investments,
not exceeding one-tenth part of the original amount to be paid in, unless the
Court for special reasons (which it shall record) thinks fit to require a
larger additional amount.
(b) Thereupon the
Court may, if it thinks fit, and after notice to the incumbrancer, unless the
Court, for reasons to be recorded in writing, thinks fit to dispense with such
notice, declare the property to be freed from the incumbrance, and make any
order for conveyance, or vesting order, proper for giving effect to the sale,
and give directions for the retention and investment of the money in Court.
(c) After notice
served on the persons interested in or entitled to the money or fund in Court,
the Court may direct payment or transfer thereof to the persons entitled to
receive or give a discharge for the same, and generally may give directions
respecting the application or distribution of the capital or income thereof.
(d) An appeal
shall lie from any declaration, order or direction under this section as if the
same were a decree.
(e) In this
section “Court” means (1) 15[ the High Court Division] in the exercise of its
ordinary or extraordinary original civil jurisdiction, (2) the Court of a
District Judge within the local limits of whose jurisdiction the property or
any part thereof is situate, (3) any other Court which the Government may, from
time to time, by notification in the official Gazette, declare to be competent
to exercise the jurisdiction conferred by this section.
CHAPTER IV
OF MORTGAGES OF
IMMOVEABLE PROPERTY AND CHARGES
“Mortgage,” “mortgagor,” “mortgagee,”
“mortgage-money” and “mortgage-deed”defined
58. (a) A mortgage
is the transfer of an interest in specific immoveable property for the purpose
of securing the payment of money advanced or to be advanced by way of loan, an
existing or future debt, or the performance of an engagement which may give
rise to a pecuniary liability.The transferor is called a mortgagor, the
transferee a mortgagee; the principal money and interest of which payment is
secured for the time being are called the mortgage-money, and the instrument
(if any) by which the transfer is effected is called a mortgage-deed.
Simple mortgage (b) Where, without delivering possession of
the mortgaged property, the mortgagor binds himqwself personally to pay the
mortgage-money, and agrees, expressly or impliedly, that, in the event of his
failing to pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold and the proceeds of sale to be applied,
so far as may be necessary, in payment of the mortgage-money, the transaction
is called a simple mortgage and the mortgagee a simple mortgagee.
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