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.

Attestation of a document
Mere attestation of a document by a person does not mean that he had knowledge about the contents of the document and as such he is not bound by the transaction. Amanatullah and others Vs Au Mohammad Bhuiyan and another, 17 BLD (AD) 199.

Section 3 of the Transfer of Property Act and Section 68 of the Evidence Act:
The law on attesting witness is guided by section 3 of the Transfer of Property Act and Section 68 of the Evidence Act. The scribe will not be an attesting witness unless he intends to sign the deed as such. In other words a scribe can play the dual role of a scribe and an attesting witness. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

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.

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

A will is a document in which a person specifies the method to be applied in the management and distribution of his estate after his death.
A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator.
The Appellate Division held that transfer of any quantum of property to an heir requires the consent of the other heirs after the death of the testator. In the case before Appellate Division the bequest being in favour of heirs of the testator can only be valid if the other heirs consent. In the facts of the case there does not appear to be con-sent by other heirs and, therefore, the deed in question cannot be a valid deed of transfer.
Noorjahan Begum and another -Vs.- Aminul Huq and others (Civil) 9 ALR (AD) 15-20

Termination of tenancy on ground of undesirability—
Undesirability of tenant is no ground for termination of tenancy. Unless the tenant comes within the mischief of forfeiture under the Transfer of Property Act, he can not be liable to ejectment. Mrs.Maria Kheshi Rozario Vs. Messers Hassan. Movies Ltd. 9 BLD (AD) 129.

The ratio of judicial pronouncements is that for applicability of section 41 of the Act primarily two things must concur: (1) that the person, i.e. ostensible owner, who has no real title was clothed with the insignia of ownership with the consent, express or implied, of the real owner; and (2) that the person purchasing for value from the ostensible owner shall take reasonable care to -ascertain that his transferor has authority to make the transfer. At the time of making the purchase from Narayan Chakraborty plaintiffs were very much aware that their vendor's father was alive. The plaintiffs made their purchase without making reasonable inquiry to ascertain real ownership of the property transferrred by their vendor, nor did they take steps for ascertaining the correctness of the recital in the deeds in spite of being aware of the fact that real owner of the property was alive at the material time. Rabeya Khatun & others vs Moniruddin and others 8 BLC (AD) 121.

Judgment sought to be appealed that it was primarily contended before the High Court Division from the side of the parties to the appeal how far the Court of appeal below was correct in applying the provision of Section 43 of the Transfer of property Act. Amal Krishna Chakrabarty vs. Sekender Mallik (Md. Ruhul Amin J)(Civil) 5ADC 61

Section 47 of the Transfer of Property Act applies when owners who hold estate as tenants in common transfer a part of the estate; the share of each co-owner is proportionately reduced equally. If the shares are unequal there is a greater reduction in the greater share, and a lesser reduction in the lesser share. Zafela Begum vs Atikulla 16 BLC (AD) 46.

The Partition Act
Section 4 r/w
The Transfer of Property Act
Section 44
In a suit filed by the stranger purchaser for partition, a co-sharer of the undivided family dwelling houses can apply for pre-emption under Section 4 of the Partition Act at any stage of the suit. But when a suit for partition is filed by a co-sharer against the other co-sharers and the stranger purchaser, the right to apply for preemption would only arise when the stranger purchaser seeks separate allotment of the share. So long as such step is not taken, the co-sharer’s petition filed under sec.4 of the Act is not tenable. When in a partition suit filed by the cosharer, the stranger purchaser after passing of the preliminary decree applied for appointment of the commissioner for partition of the undivided family dwelling house by metes and bounds and allotment of his share to him on such partition, then the filing of the application for pre-emption after such steps had been taken by the stranger purchaser is maintainable. In the meantime, the right of the co-sharer shall be protected by the second part of sec 44 of the Transfer of Property Act and the stranger purchaser shall be resisted by injunction to take possession or even if he has taken possession, he can be evicted in an appropriate proceeding under the law.
Our considered opinion is that the instant prayer for pre-emption under section 4 of the Partition Act at that stage of the proceeding was not at all maintainable. The appeal is allowed without any order as to cost. …Jahanara Hossain(Mrs.) =VS= Surajit Kumar Das, (Civil), 2020 (1) [8 LM (AD) 79] ....View Full Judgment

The Partition Act
Section 4 r/w
The Transfer of Property Act
Section 44
In a suit filed by the stranger purchaser for partition, a co-sharer of the undivided family dwelling houses can apply for pre-emption under Section 4 of the Partition Act at any stage of the suit. But when a suit for partition is filed by a co-sharer against the other co-sharers and the stranger purchaser, the right to apply for preemption would only arise when the stranger purchaser seeks separate allotment of the share. So long as such step is not taken, the co-sharer’s petition filed under sec.4 of the Act is not tenable. When in a partition suit filed by the cosharer, the stranger purchaser after passing of the preliminary decree applied for appointment of the commissioner for partition of the undivided family dwelling house by metes and bounds and allotment of his share to him on such partition, then the filing of the application for pre-emption after such steps had been taken by the stranger purchaser is maintainable. In the meantime, the right of the co-sharer shall be protected by the second part of sec 44 of the Transfer of Property Act and the stranger purchaser shall be resisted by injunction to take possession or even if he has taken possession, he can be evicted in an appropriate proceeding under the law.
Our considered opinion is that the instant prayer for pre-emption under section 4 of the Partition Act at that stage of the proceeding was not at all maintainable. The appeal is allowed without any order as to cost. …Jahanara Hossain(Mrs.) =VS= Surajit Kumar Das, [8 LM (AD) 79] ....View Full Judgment

Section 47 of the Transfer of Property Act applies when owners who hold estate as tenants in common transfer a part of the estate, the share of each co-owner is proportionately reduced equally. If the shares are unequal there is a greater reduction in the greater share, and a lesser reduction in the lesser share. In this case Wazuddin alone allegedly gifted .55 acre of land out of his share and accordingly, it is section 44, not section 47 as contended by Mr. Mahmudul Islam, which is applicable if the claim of gift by Hiba is found genuine. Under this provision, if one of the several co-owners transfers his share, the transferee stands in the shoes of the transferor. He acquires as against the other co-owners the same rights that of the transferee had, and is subject to any conditions affecting the share at the date of the transfer. The principle of this section is that of subrogation or substitution. ...Zafela Begum =VS= Atikulla, (Civil), 2021(2) [11 LM (AD) 544] ....View Full Judgment

Principle underlying section 47 has no application where transfer of the immovable property has been affected by person who had no such right at the time of transfer. Mst. Khaleda Rajia Khanun Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27.

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

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

The doctrine of lis pendens as in section 52 of the Transfer of Property Act is intended to maintain the status quo unaffected by the act of any party to the litigation pending its determination. If in spite of reconveyance to the original vendor subsequent to filing of the case seeking pre-emption, the pre­emption is allowed, then the principle of lis pendens also will be applicable in the pre­emption case. Ambiya Khatun and others vs Noor Ahmed and others 9 BLC (AD) 114.

The appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd when there was no civil suit pending and, as such, the High Court Division committed error of law in holding that the transfer took place during the pendency of suit and was hit by the doctrine of lis pendens. Bushra Complex Ltd and another vs Syeda Sabera Khatun & others 10 BLC (AD) 76.

The cause of action of the suits being all together different the principle of section 52 of the Transfer of Property Act has no manner of application inasmuch as in the earlier suits right to immovable property was not directly and specifically in question whereas in the present suit right to immovable property is directly and specifically in question. Mohiuddin Khan vs Shihamul Haque 15 BLC (AD) 129.

The Code of Civil Procedure, 1908
Section 11
State Acquisition and Tenancy Act, 1950
Section 150(1)
The Transfer of Property Act
Section 52
The question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code– The finding of the Appellate Court clearly shows that it did not also at all consider the facts and circumstances of the case under which the order of amalgamation of the khatians was passed. Since the Appellate Court failed to consider provisions of section 150(1) of the Act, 1950 in rejecting the cross-objection filed by the pre-emptors against the finding of the trial Court as the co-shareship of the pre-emptors its finding in that respect was per incuriam. Further the Appellate Court totally misconceived the doctrine of lis pendens and also totally failed to consider that the act of amalgamation of the khatians of the pre-emptors on the basis of an application under section 150(1) of the Act, 1950 during the pendency of the miscellaneous cases was not a case of lis pendens within the meaning of section 52 of the Transfer of Property Act, but a malafide and smart move made by the pre-emptors to acquire the locus standi to file the application for pre-emption by resorting to amalgamating the khatians which stood separated long three years before and had already been acted upon. Therefore, Appellate Division finds no substance in the submission of Mr Khair Ezaz Maswood that the question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code. The facts and circumstances of the case under which the Privy Council propounded the principle of resjudicata in the case of GH Hook (supra) are absolutely distinguishable from the instant case and hence the principle of law enunciated therein has no manner of application in the instant case. This Division finds merit in the appeals and accordingly, both the appeals are allowed. The judgment and order of the High Court Division is set-aside and those of the Courts below are restored. .....Abdul Gafur =VS= Md Muklesur Rahman, (Civil), 2022(1) [12 LM (AD) 200] ....View Full Judgment

It is also seen that appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd, when there was no civil suit pending. Therefore the High Court Division com­mitted an error in holding that the trans­fer took place during the pendency of suit and was hit by the doctrine of lis pendence. Bushra Complex Ltd. 2. Mr. Bazlur Rahman vs Syeda Sabers Khatun (Mainur Reza Chowdhury 7j(Civil) 2ADC 83

Transfer of assets of firm pending suit for declaration that firm stands dissolved—Transferee acquires no right or interest in property.
Where a suit was pending for a declaration that a firm had been dissolved and also for rendition of accounts and the property of the firm was transferred pending the suit. It was held that the transferee of the property did not acquire any right or interest in the property. Usman Vs. Haji Omer PLD 1966 (SC) 328 (Hamoodur Rahman, J.)

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.

Held : We agree with the finding of the High Court Division that the petitioner Zubeda Ahmed did not acquire any title by way of gift from Hafiz Mohammad Ahmed who himself had no title but merely held power of attorney to transfer. [Para-3] Mrs. Zuheda Ahmed Vs. Bangladesh & Ors. 10 BLT(AD)-32

On the promulgation of the President's Order No. 16 of 1972 the-property assumed the character of abandoned property and that as per provision of Article 10 of the President's Order No. 16 of 1972 the property vested in the government and that possession of the property in question though claimed by the respondent No. 1, but as was not established was with him on 28-2-1972 when PO No. 16 of 1972 came into force and that as no material has been brought on record whereupon it can be said that the possession claimed by the respondent No. 1 is of the kind of possession as contemplated by the provision of section 53A of theTransfer of Property Act, as such, possession of the respondent No. 1 of the property in question is not protected under section 53A of the Transfer of Property Act. Government of Bangladesh vs KM Zaker Hossain and others 8 BLC (AD) 27.

Had the transactions been the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan's free will and that had the Heba-bil-ewaz deeds been not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would, in the normal course of conduct and behaviour, have taken exception to both the transactions instead of that she is taking exception only in respect of one transaction i.e. the transaction which was made in favour of the defendant, and this shows lack of bonafide on her part and that she being influenced by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan Bibi, instituted the suit. Mustafizur Rahman vs Md Amjad Hossain 11 BLC (AD) 195.

Registration Act
Section 52A
Transfer of Property Act
Section 53C
It is settled proposition that Record of Right alone does not confer title but it has got presumptive value in favour of the person in whose name Record is prepared but again the presumption can be rebutted by showing cogent evidence and proof. As such any person can take recourse of law ventilating his grievance. If somebody’s name is erroneously not inserted in the record, he can take recourse to the Court of law for appropriate declaration but his claim cannot be stifled taking aid of Section 52A of the Registration Act or 53C of the Transfer of Property Act. ...Kamal Miah & ors. Vs. Lakkatura Tea Co. Ltd & ors., (Civil), 11 SCOB [2019] HCD 109 ....View Full Judgment

Where an agreement to lease is evidenced and the lessee is put in possession, there has been acceptance of salami and/or acknowledgment of receipt of money towards sale of possession, section 53A will be used as shield against the owner to oust the tenant. The lessee could defend the suit for ejectment. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46] ....View Full Judgment

The Transfer of Property Act, 1882
Section 53A, 54 r/w
The Registration Act
Sections 17 and 49 r/w
The Contract Act, 1872
Section 23
The documents clearly show that a substantial amount of money was received on the plea for selling the possession of the space for shop premises. The tenants have given the right of transfer of possession subject to payment of transfer fee. This sale of possession is hit by section 54 of the Transfer of Property Act, sections 17 and 49 of the Registration Act, and section 23 of the Contract Act, but this does not mean that the tenants can be evicted treating them as ejectable tenant. They have acquired interests in the premises by reason of payment of money towards sale of possession and their interest is protected under section 53A. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46] ....View Full Judgment

Suit of declaration of title in the suit land on the averments...(2) Suit for declaration of title under section 53 A of transfer of property Act as made by (plaintiffs) is not maintainable and no case has also be mad out for the claim of title on the basis of adverse possession. Bijoy Kumar Sarbabidya vs. Government of Bangladesh (Md. Tafazzul Islam J) (Civil) 5ADC 44

—Section 53A of the Transfer of Property Act makes an exception in favour of the transferee in possession in respect of a document which requires registration.
Section 49 of the Registration Act no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property. Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 38

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.

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.

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.

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.

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.

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

Adverse Possession
Receipt is not a deed of title and cannot therefore, confer title to the plaintiff under section 54 of Transfer of Property Act. But uninterrupted adverse and hostile possession over a period of 12 years confers title upon the plaintiff. Courts below on misreading evidence on record and on misconception of law wrongly held that elements constituting adverse possession are lacking in the instant case. Sree Santipada Datta being dead his heirs: Aranangshu Datta and others. v. Satish Chandra Das and others, 22 BLD (AD) 246.

That section 54 of the Transfer of Property Act provides that sale would be complete even if the consideration money is not paid or is part-paid or part promised. He next submits that in the case of non-payment of full considera­tion money or part consideration, the vendor may sue the vendee for recovery of the consideration money. Satish Chandra Mondal vs. Ayjuddin Gazi being dead his heirs Amjad Gazi (M.M. Ruhul Amin J)(Civil) 4ADC 757

The Transfer of Property Act
Section 54
The Specific Relief Act
Sections 12, 21 and 22
The plaintiff cannot get relief on the strength of ‘aposhnama’— Admittedly, on 14.10.2003 an unregistered ‘aposhnama’ was executed between the plaintiff and defendants. In the said ‘aposhnama’ there was a condition between plaintiff and the defendants that after fulfillment of the conditions they would mutually withdraw their cases at their own responsibility and the defendants would execute a deed in favor of the plaintiff in respect of ‘Ka’ and ‘Kha’ schedule land while the plaintiff would execute a deed in favor of the defendants in respect of homestead measuring 11 decimals. The main contention between both the parties is that whether due to non-fulfillment of terms and conditions of said ‘aposhnama’ the plaintiff is entitled to get the decree of specific performance of contract on the basis of said ‘aposhnama’. —That both the plaintiff and defendants did not withdraw criminal cases filed against each other and as such no compromise was made between the parties. Since the terms and conditions described in the ‘aposhnama’ dated 14.10.2003 regarding the withdrawal of criminal cases had not been fulfilled the said ‘aposhnama’ was impliedly revoked. In the premises made above, the plaintiff cannot get relief on the strength of ‘aposhnama’ dated 14.10.2003.
A sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. But in the case in hand no pecuniary consideration was dealt with between the parties and as such the transaction in question cannot be termed as sale. Moreover, as it has already been found that due to non-compliance of the terms and conditions of ‘aposhnama’ dated 14.10.2003 there is no scope to claim right and title over the suit land by virtue of the alleged unregistered sale deeds. —The appellate Court below lawfully set aside the judgment and decree of the trial Court and the High Court Division on proper scrutiny of the record affirmed the judgment of the appellate Court below. Appellate Division does not find any deviation in the impugned judgment and decree of the High Court Division. .....Md. Dabir Uddin =VS= Md. Moniruddin, (Civil), 2024(1) [16 LM (AD) 57] ....View Full Judgment

High Court Division while exercising revisional jurisdiction approved the findings of the appellate Court below since there is no non-consideration and misreading of material evidence affecting the merit of the case–– The appellate Court below (whether concurrently or not) arrived at decision as the last Court of fact, no Court can interfere with such finding of factual aspect unless it is satisfied that said findings are perverse. In the instant case, the High Court Division while exercising revisional jurisdiction approved the findings of the appellate Court below since there is no non-consideration and misreading of material evidence affecting the merit of the case. Appellate Division also holds the view that since there is no perversity in the findings of the appellate Court due to non-consideration or misreading of material evidence on record, the revisional Court rightly arrived at a correct decision in appreciating and approving the decision of the appellate Court below. ...Lalmon Bibi =VS= Md. Delowar Hossain, (Civil), 2021(2) [11 LM (AD) 610] ....View Full Judgment

Constitution of Bangladesh, 1972
Article 103 (2) r/w
Transfer of Property Act, 1882
Section 55
It is settled that when a finding of fact is based on consideration of the materials on record, those findings are immune from interference by the revisional court except there is non-consideration or misreading of the materials evidence on record. It has now been conclusively settled that the third court cannot entertain an appeal upon question as to the soundness of findings of fact by the second court. If there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final. Since the learned subordinate Judge came to finding of facts regarding title of the suit land and possession of the parties as well as dispossession based on assessment of evidence on record and the High Court Division upheld the finding upon re-assessing the evidence on record, the matter does not call for any interference. .....Abdus Daiyan Khan @ Babul(Md.) =VS= Abdur Rouf Bhuiyan(Md.) , (Civil), 2022(2) [13 LM (AD) 145] ....View Full Judgment

The Transfer of Property Act, 1882
Section 55
The Premises Rent Control Act, 1991
Section 10
As admittedly, the suit was filed by the Plaintiff-Petitioner for eviction of the Defendant-Respondent without seeking any remedy as to the determination of the possessory right of the shop in question but the Courts below as well the High Court Division without any coherent rationale attached recognition to the so called possessory right of the Defendant- Respondent which is nothing but insignificant, hence, Appellate Division finds legal infirmity in dismissing the suit, holding monetary transaction was for sell of possession seems to us in a suit for eviction is nothing but superfluous. It, rather, amounts to passing preventive decree in favour of the Defendant in the plaintiff's suit for eviction of monthly tenant. ––If the transferors and purchasers or possession holders before purchase of possession of any property comply with the provisions of section 55 of the Transfer of Property Act, 1882, Section 10 of the Premises Rent Control Act, 1991 as well as Registration Act, 1908. ––Accordingly, the leave petition is disposed of. The impugned judgment and order of the High Court Division and both the Courts below are set aside. The suit is decreed. .....Rahima Begum =VS= Md. Zahidul Islam, (Civil), 2022(2) [13 LM (AD) 617] ....View Full Judgment

Section 58(C) of the transfer of property Act contemplates mortgage by conditional sale wherein it has been clearly laid down that where the mortgagor ostensibly sells the mortgage property on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is a mortgage by conditional sale. The law permits for such a document. Asmat Ali Vs. Abdur Rqfique Mridha & Ors. 9BLT(AD)-77

If the condition for repurchase is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. It comes that a transaction in which the stipulation for repurchase is contained in a separate document cannot be a mortgage of any kind because it cannot fall under any other category of mortgage as per the provisions of the Transfer of Property Act. But it does not follow that if the stipulation for reconvenyance is embodied in the same deed, the transaction be taken as a mortgage.
Asek Elahi -Vs. Jalal Ahmed and others. 4 ALR (AD) 2014 (2) 63

Deed of mortgage and out and out sale deed? If it is a mortgage deed a suit for redemption is permissible.
A mortgage is a transfer and in the next place it is a transfer of interest in specific immovable property. A mortgage may be created to secure payment of debt, whether present or future or to secure performance of an obligation which may give rise to some pecuniary liability, in case of a mortgage the relationship of borrower and lender exists. For creating a mortgage it is to be seen whether the words used in the deed sufficiently indicate an intention to create a security for a debt. Asek Elahi -Vs. Jalal Ahmed and others. 4 ALR (AD) 2014 (2) 63

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.

Mere inadequacy of consideration is no ground to treat a document to be a mortgage. Somedullah vs Mahmud Ali 44 DLR (AD) 83.

Right of redemption of a mortgage
When a deed of mortgage is out and out a sale deed with a condition of re-purchase and subsequently the mortgagor accepts some money from the mortgagee and relinquishes his right of re-purchase/redemption, the subsequent deal takes place as a separate transaction between the contending parties and it has the effect of redemption of mortgage. Tafzal Ahmed Contractor Vs. Abdur Rahim and others, 16 BLD (AD) 160.

Transfer of Property Act [IV of 1882]
Section 60 read with
Artha Rin Adalat Ain [VIII of 2003]
Section 5(4)
Once the mortgaged property is sold in the execution process of a decree before the Artha Rin Adalat, the mortgagor shall lose his right to redeem the mortgaged property irrespective of any provisions in the Transfer of Property Act or any other laws applicable at the relevant time to the contrary.
The High Court Division held that the bank has already sold the said property through auction on the basis of the said certificate and respondent No. 6 has purchased the said property through such auction being the highest bidder therein. Not only that, sale certificate dated 10.09.2009 issued by the bank (Annexure-5 to the supplementary-affidavit of the respondent No. 6) further proves that the sale in favour of the respondent No. 6 through the said auction has in the meantime become final. Therefore, in view of the provisions under sub-section (4) of Section 5 of the Artha Rin Adalat Ain, 2003, the petitioner No. 2-mortgagor’s right to redeem the said mortgaged property as mentioned under ‘Kha’ Schedule has become extinguished with the sale of the said mortgaged property in favour of respondent No. 6 and, accordingly, the petitioner No. 2 has lost its right to redeem the said property for ever. Not only that, under the said provisions, the purchase by the respondent No. 6 has become a legal purchase and the same cannot be questioned under any circumstances in so far as his right to hold and own the said property is concerned. S.K. Amir Hossain and another. -Vs.- Government of Bangladesh and others. (Spl. Original) 2019 ALR (HCD) Online 193 ....View Full Judgment

The object of section 73 of the Transfer of Property Act is only to protect a mortgagee whose security has been diminished. The section does not lay down that if a mortgaged property is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property the only remedy of a mortgagee is to claim payment of his money Out of any surplus of the sale-proceeds. The section permits a mortgagee to take recourse to this section only when his security has been diminished on account of sale as contemplated by section 73. Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34.

Lease of immovable property is created under Section 105 of the Transfer of Property Act and, as such, statutory notice must be given under Section 106 of the Act for termination of the tenancy. Without serving a notice. upon the tenant as contemplated by Section 106 of the T,P. Act, no suit for ejectment of a monthly tenant can be filed. Abdul Aziz Vs. Md. Abdul Majid, 14 BLD (AD) 147.

The defendants could not be evicted on the ground that the relationship of landlord and tenant had ceased with the death of the defendants predecessor and the tenancy was not heritable. There being no legal and valid ground for the eviction of the defendants, the suit must fail. Subash Chandra Talukdar and others Vs Abdul Sattar Chowdhury being dead his heirs: Ambia Khatun and others, 19 BLD (AD)17

The period for which the suit was brought, namely, 1401-1402 BS has already expired and the plaintiff had no subsisting leasehold right in suit fishery at the material time. Moreso, defendants 1-6 cannot be made liable for any damage done to the plaintiff by a third party, namely, defendant No. 7. The lease period having expired the plaintiff cannot also get any declaration of title against anyone including the defendant No. 7. Bangladesh vs Abdul Alim Sarkar 6 BLC (AD) 38.

Without giving valid notice the lease-hold right cannot be cancelled—
The Housing Estate Authority allotted the plot in question to respondent No. 1 for 99 years upon receipt of instalment of consideration money and accordingly, possession was delivered. Admittedly, the notice asking the respondent No. 1 for paying the 4th instalment and that in case of non-starting of construction, the allotment in question would be cancelled without further communication was sent to the address where knowingly the lessee does not reside. It further appears that the writ-petitioner-respondent No. 1's allotment of the plot was cancelled on 11-8-94 and on the same day it was allotted to respondent-appellant in the absence of any application from her side seeking allotment In such circumstances, the cancellation of the lease and the allotment of the plot in question to the appellant were malafide and the action of the Housing Estate Authority is without lawful 'authority as it was done without giving any notice to the allottee. Jahanara Ahmed vs Md Abdul Quyum and others 8 BLC (AD) 20.

That a person continuing in possession after termination of a tenancy in his favour is also a tenant. It is on record that after the expiry of the period of lease the tenant is continuing in posses­sion and is paying rent in the House Rent Control Case No. 367 of 1984 reg­ularly. In that view of the matter, defen­dant is a tenant under the Premises Rent Control Ordinance and in that sense he is a statutory tenant. Rent Control legis­lation is a special law which gives a greater protection to a tenant against eviction so long he pays rent to the full extent allowable by this ordinance and perform the conditions of the tenancy. Abdul Aziz vs. Md. Abdul Majid (Latifur Rahman J)(Civil) 4ADC 458

Lease and licence distinguished—Procedure for eviction-different—
Lease is quite distinguishable with licence. Procedure as required in the case of monthly tenant is not applicable for evicting a licencee. Mohammad Habibur Rahman Vs. Government oj Bangladesh and others. 2, MLR (1997) (AD) 411.

Monthly tenancy— Not heritable— Continuance of it depends upon personal relationship—Section 116— Rights of tenancy on holding over—
Monthly tenancy comes to an end with the death of the tenant. Under the tenancy from month to month the tenant has the right to occupy and enjoy the premises which is based on personal relationship between the landlord and tenant. If the heirs continue to stay on they are held to be tenants by holding over. Abdul Latif and another Vs. Abdul others 3 BLD (AD) 37.

The essential elements constituting a icase, arc the following; (a) the right must be one as to immovable property; (b) the right must be that of enjoyment of immovable property; (c) there must be a transfer of such right; (d) the right of transfer is an interest in property; (c) the transfer must be made for a certain time, express or implied, or in perpetuity; (1) the transfer must be one for consideration; (g) the consideration must be of the particular kind namely, premium or rent, as defined by the section, either or both of them. Abdus Sattar & Ors. Vs. Suresh Chandra Das (1980) 32 DLR (AD) 170.

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.

A tenancy can also be created by oral agreement. The fact that no one actually saw payment of rent 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.

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.

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.

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.

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.

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.

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.

Observations that the notice under I 06 of TP Act having not been served by PW I, the landlord, was bad in law, are beyond the pleading and amount to making out a new case for the defendant. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272.

A benamdar is a trustee for the beneficial owner. A suit for eviction at the instance of the owner's wife and son in whose name the Kabalas stand is maintainable. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272.

A benamdar represents the real owner. A proceeding by or against the benamdar, although the beneficial owner is no party to it, is fully binding on the beneficial owner. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272.

When the tenancy itself was terminated, a sub-lease created by the tenant cannot be said to have subsisted. It appears that the High Court Division omitted to consider that when defendant No. 1 was admittedly a tenant of the appellants predecessor Abdul Aziz Bepari who inducted defendant No. 2 into the suit premises without the consent and knowledge of the latter such transaction was of the nature of sub—lease, though not binding upon the landlord who was unaware of it. No question of giving consent to the sub—lease could, therefore, ever arise. Moreover, when the tenancy itself which was created in favour of defendant No. I by the appellants; predecessor was terminated, a sub­lease in favour of defendant No. 2 by the tenant cannot be said to have subsisted. A sub—lease can be said to be trespasser in the circumstances of the case. Technicalities of law may sometimes prove to be of great value in winning even a bad case, but the defendant cannot hope to win on such technicalities alone. Tajabunnessa vs Nazma Begum 40 DLR (AD)36.

Reagitating a point—When leave was granted with the tacit admission that the notice under section 106 of the TP Act was defective the Court cannot in fairness embark upon a fresh inquiry into the validity of such notice. The landlord-appellants having abandoned that point, they cannot be allowed to reagitate the same in the absence of the respondent. Zahura Khatun vs Rokeya Khatun 43 DLR (AD) 98.

When a tenant denies the title of the landlord in the demised premises without any valid reason it operates as a forfeiture of his tenancy right and in such a case a notice under section 106 of the TP Act may be dispensed with. Solaiman (Md) vs Sufia Akhtar Alam being dead, her heirs Narjesa Rahamatullah & others 50 DLR (AD) 90.

Without serving any notice under section 106 of the Act no tenant can be evicted. Abdur Noor and others vs Mahmood Ali and others 54 DLR (.4D) 67.

Allowing more than one month's notice to determine the tenancy has not contravened any of the provisions of the Transfer of Property Act or the Premises Rent Control Ordinance. Santosh Kumar Das vs Hajee Badiur Rahman 54 DLR (AD) 93.

Premises Rent Control Ordinance
Valid and legal notice—agreement, clause speaks for one months notice in order to terminate the tenancy - in the instant ease, a notice dated 18.01.1974 was served upon the respondent-tenant determining the tenancy with efleet from 28th day of February 1974 and though the period of notice dated 18.01.1974 determining the tenancy w ith effect from 28.02.1974 was more than perio of 30 days contemplated by Ext. 1 the same do not in any way prejudice the petitioner or suffer form any illegality or infirmity in the service of notice determining the tenancy and is in consonance with the terms of Fxt. 1 and the provision of law in spite of the fact that the payment of rent was according to the English calendar month and only 15 days notice is required for determination and termination of the tenancy under the provision of Section 106 Transfer of Property Act. In that view of the matter allowing more that one months notice to determine the tenancy has not contravened any of the provision of the Transfer of property Act or the terms of Ext. 1 as there was no alteration or variation thereof and the same is valied compliance with the agreement between the parties and thus the notice determining the tenancy is also a valid one. Sontosh Mukar Das Vs. Hajee Badiur Rahman. 10 BLT (AD)-59.

The petitioner having continued as a tenant in the remaining part of the demised premises after demolition of the front portion he will be deemed to be a tenant of whatever portion he occupies and there can be no manner of making the notice ineffective because of changes in the size of the demised premises. Also it cannot be said that because of demolition of two-third of the tenancy there was no tenancy at all. Sree Mukti Pada Shil Vs Golam Mohammad, 19 BLD (AD) 124.

Notice terminating tenancy
When a tenant denies the title of the landlord in the demised premises without any valid reason it operates as a forfeiture of his tenancy right and in such a case a notice under section 106 of the T.P. Act may be dispensed with. Alhaj Md. Solaiman Vs. Mrs. Sufia Akhtar Alam being dead her heirs: Narjesa Rahamatullah and others, 16 BLD (AD) 47.

A notice served upon a tenant with more than 30 days as contemplated by the agreement between the parties does not in any way prejudice the petitioner or suffer from any illegality or infirmity in the service of notice determining the tenancy and is in consonance with the terms of the agreement and the provision of law, inspite of the fact that the payment of rent was according to the English calendar month and only 15 days notice is re quired for determination and termination of the tenancy under the provision of the section 106 Transfer of Property Act. Santosh Kumar Das v. Hajee Badiur Rahman, 22 BLD (AD) 30.

The High Court Division held that the question of bona fide requirement was not relevant since the transferable tenancy right was granted by the landlord on receipt of salami.
However, in view of our observation regarding legality/illegality of salami, such finding of the High Court Division is not tenable. Moreover, from the deposition of witnesses, it is evident that the suit property is old and requires modernisation, especially since all the adjacent properties are multi-storied. Clearly the observation of the High Court Division is not in accordance with the law. We are of the opinion that the impugned judgement is not in accordance with law and calls for interference by this Division. Accordingly, the appeal is allowed, without however any order as to costs. …Alhala Khatun(Most.) =VS= Rezia Khanam(Most.), (Civil), 2019 (2) [7 LM (AD) 1] ....View Full Judgment

It cannot be said that bonafide requirement of the premises by the plaintiff is a mere desire/wish since she has established her bonafide requirement by reliable evidence. Exception taking which the defendant tried to disprove the claim of the plaintiff as regards her bonafide requirement could not be established by evidence. Second plea of the defendant that in commercial area residential house cannot be constructed also does not stand to scrutiny in the background of the type of construction now-a-days as is being made both for commercial as well as for residential purposes in the locality where commercial activities are already in existence. It has also been established by the evidence on record, both oral and documentary, that the tenancy in question was terminated in accordance with law. Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97.

No possession having been given, no vested right was created and the lessee Abul Hashem Khan could not legally claim one month's, calendar notice under the provision of the lease agreement. The High Court Division, therefore, erred in holding that one month's calendar notice was required to be served upon Abul Hashem Khan before determining lease. Bushra Complex Ltd and another vs Syeda Sabera Khatun WBLC (AD) 76.

The learned Judges of the High Court Division made the Rule absolute on discussion and proper consideration of the facts and law involved in the case holding that a registered deed of lease of immovable property for 99 years could only be deter­mined by service of a notice under section 106 of the Transfer of Property Act, 1882 and such a lease deed cannot be cancelled in part and that partial cancellation of the lease deed by the respondent No.7 for non-construction of any building in the portion of the petitioner's land is not justified and warranted either by the lease deed or by law. Dr MA Yahia vs Md Abdul Quader 14 BLC (AD) 109.

Eviction of tenant– It appears that attornment by tenant as not necessary to confer validity of the transfer of the landlord’s rights. Since attornment by the tenant is not required a notice 106 of the Transfer of Property Act in terms of lease by transferor land landlord would be proper and so also the suit for ejectment. Attornment would, however, be desirable as it means the acknowledgement of relation of a tenant to new landlord. It also implies continuity of tenancy. ...M. A. Awal =VS= Md. Abdus Rashid Khan Chowdhury, (Civil), 2021(1) [10 LM (AD) 127] ....View Full Judgment

The defendant forfeited their right to stay in the suit properties by denying the title of the plaintiffs and as such the contents of the notice or any purported facts are insignificant here. Because if someone denies title of the land lord, notice under section 106 of the Transfer of Property Act may be dispensed with. Consequently the decision referred in 51 DLR 393 is not applicable here. On the other hand the case reported in 1 BLC AD 156 as reported by Mr. A.M. Amin Uddin has got semblance with the present case. ...Ramesh Chandra Das & ors Vs. Sureshwar Mazumdar & ors, (Civil), 5 SCOB [2015] HCD 96 ....View Full Judgment

The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice–
High Court Division in revision could interfere with the concurrent findings of fact of the Courts below only on the ground of error of law resulting in an error in the division occasioning failure of Justice. The findings of the Courts below based on consideration of the evidence on record is not liable to be interfered with in revision. The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice. But in the instant case the High Court Division wrongly construed the terms of Ext.1 in its finding that the notice under section 106 Transfer of Property Act is not a valid and legal notice. Thus the impugned judgment and order of the High Court Division suffers from illegality and infirmity. The impugned judgment of the High Court Division is not sustainable in law and accordingly the same is liable to be set aside. .....Santosh Kumar Das =VS= Hajee Badiur Rahman, (Civil), 2018 (2) [5 LM (AD) 423] ....View Full Judgment

The Premises Rent Control Ordinance, 1984
Section 20 r/w
The Transfer of Property Act
Section 106
if the landlord accepts rent in respect of any premises sent by postal money order by the tenant, the fact of this acceptance or withdrawal shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the postal money order form or in the application for deposit of such rent or that he has waived any notice to quit given by him to the tenant. …Intekhab Ahmed Khan =VS= Sabbir Ahmed Chowdhury, [8 LM (AD) 178] ....View Full Judgment

Unregistered argument one, was valid for one year only as per provisions of section 107 of the Transfer of Property Act and after the expiry of the period of one year the parties would be guided by the provisions of Premises Rent Control Act. 1991. Sub letters premises without the written permission of the landlord and on this ground alone the defendants are liable to be evicted from the suit premises. Hafiz Md. Shamsul Alam vs Musleuddin Ahmed (Md. Ruhul Amin, J)(Civil) I ADC 488

The learned Judge of the High Court Division clearly fell into an error in holding that the trial court had wrongly shifted the burden of proof of service of notice upon the defendant although the trial court on consideration of the both oral and documentary evidence, men­tioned earlier, held that the tenancy in question had stood terminated on the expiry of chaitra, 1391 B.S. upon due service of notice under section 106 of the T. P. Act. Moreover in view of the evidence of P. Ws. 1 and 2 and the doc­uments like postal receipts Ext. 5 and 5 A there was legal presumption of due service of notice in question upon the defendant and as such the trial court rightly observed that the defendant did not rebut such legal presumption of due service of notice examining his brother Mosharraf Hussain. Musammat Mohsena Kahtun vs M/s Habib Knitting Mills ors. (Mohammad Abdur Rour J) (Civil) 2ADC 136

The learned Single Judge of the High Court Division, following the trial court, committed serious error of law in relying upon Ext. 1, a certified copy of the firisti, because a firisti is no evidence of the contents of the documents filed. Consequently, he wrongly held that there exists relationship of landlord and tenant between the parties. Chandan Mondal @ Kushal Nath Modal vs Md. Abdus Samad Talukder (A. M.Mahmudur Rahman J)(Civil) 2ADC 192

In the instant case pursuant to clause (4) above a notice dated 18.1.1974 was served upon the respondent-tenant determining the tenancy with effect from 28th day of February 1974 and though the period of notice dated 18.1.1974 determining the tenancy with effect from 28.1.1974 was more than period of 30 days contemplated by Ext. 1.

But from our reading of the provision of sections 18 of the Premises of Rent Control Ordinance it is very much clear that so long an ejectable monthly tenant continues to parent of the premises he can not be evicted but when the tenant fails to pay rent, he becomes a defaulter and he can be evicted after serving notice under section 106 of the Transfer of Property Act. Most. Hamida vs Md. Majibur Rahman (Abu Sayeed Ahammed J)(Civil)2ADC 409

The ejectment suit against a monthly non-agricultural tenant holding land for more than one year but less then 12 years the tenant is entitled to 6 months notice and that section 106 of the Transfer of Property Act must be read as being subject to section 9 of the Non-Agricultural Tenancy Act which gives the same right to a monthly tenant as to other tenants we hold that the High Court Division has not committed any wrong and illegality in allowing the appeal and dismissing the suit. M/s. Shahjhan Enterprise Ltd. Vs Meghna Petroleum Ltd. (Mahmudul Amin Chowdhury C J) (Civil) 2ADC 455

Although the scope of exercising revisional jurisdiction under Section 25 of the Small Cause Court Act is wider than under Section 115 of the Code of Civil Procedure, yet before interfering with any finding of fact of the trial court under section 25 of the said Act the High Court Division is to come to finding that such finding of the trial Court suffers from any error of law ........ (6) Md. Nurul Islam vs Md. All Hossain Miah ors (Mohammad Abdur Rouf J)(Civil) 2ADC964

Purpose of invoking the principle of eviction by title paramount one has to prove that he has been evicted by a third person and that the third person had a paramount title, superior to the title of his alleged lessor. It is not necessary that the person claiming paramount title must in fact evict the person occupying the premises but a threat of eviction only is sufficient to constitute such eviction in the eye of law if the person sought to be evicted attorn to the claimant because the claimant gets into possession through the lessee who become his ten­ant. It is true that in the eye of law actu­al eviction is not necessary and a mere threat of eviction is sufficient to consti­tute eviction by title paramount if the person sought to be evicted attorn to the claimant of paramount title. Sree Amulya Ratn Chowdhury ors.vs Sreemati Shaibalini Ghose (A.T.M. Afzal CJ)(Civil) 3ADC 619

The suit was filed are that premises in suit belonged to plaintiffs' predecessor Mir Baksha Miah and the said premises was let out to the defendants on November 14, 1960 at monthly rental basis. Kazi Md. Abdul Kuddus and another vs. Mst. Kaimon Bewa and oth­ers (Md. RuhulAmin J)(Civil) 4ADC168

The learned Single Judge also considered the oral evidence of the parties and also the legal effect of filing of Rent Control Case No. 97 of 1979 by the defendant and came to a definite conclusion that relationship of landlord and tenant was established between the plaintiff and the defendant. The learned Single Judge also found that there was no complicated question of title and relationship of land­lord and tenant having been established decreed the suit. Bidhan Kumar Dev vs. Rabiul Alam and other (Latifur Rahman CJ)(Civil) 4ADC 281

That the defendant is defaulter because he paid the rent for the month of January 1986 but did not pay the WAS A charges as provided in clause 3(b) of the lease agreement Ext. 1. The appellate Court on the other hand found that no agreement for rent was entered by the plaintiff and the defendant and so there was no rela­tionship of landlord and tenant between them and so Md. Belial and others vs. Mariam Hossain and others (Md. Tafazzul Islam J)(Civil) 4ADC 587

Praying for ejectment of the defendants from the suit premises and also recovery of khas possession of the same. Dud Meah and others vs. Sayeda Hosena Khatun being dead her heirs (Md. Tafazzul Islam J)(Civil) 4ADC 592

The petitioners were impleded as defen­dants with a prayer for their eviction from the suit premise alleging, inter alia, that the defendants were inducted as tenants in the suit premise by the plain­tiffs on the basis of a deed of agreement dated 26.10.1988 and that the defen­dants paid rents up to the months of August, 1993 and thereafter they did not pay the rent to the plaintiffs and became defaulters .Md. Siddiqullah and others vs. Sufura Khatun and others (Mohammad Fazlul Karim J) (Civil) 4ADC 691

For ejectment of the defendants as monthly tenants from holding Nos. 13 and 12 respectively on the ground of default in payment of rent and bonafide requirement of the owner. Khondker Ansar Ahmed & others vs. A.T.M. Monsur Ali Mallik & others (MM. Ruhul Amin J)(Civil) 4ADC 640

Since the respondent is not a defaulter as found by the S.C.C. Judge and as per approved plan (Exhibit-2) by the Sylhet Municipality for construction of the first floor over the existing ground floor of the suit shop, it is not necessary to evict the respondent from the ground floor of the suit shop. But the learned S.C.C. Judge without considering the above aspect of the case erroneously held that the plaintiff has been able to prove bonafide requirement and the learned Single Judge of the High Court Division after due consideration of the case of the parties, exhibits and deposition of both the parties rightly held that the appellant failed to make out a case of requirement. Nezma Khatun Chowdhury vs. Abdul Khaleque (Syed J.R. Mudassir Husain J) (Civil)5ADC 954

Kabuliyat being a document executed by one party only, provisions of sections 106 & 110 will not apply to it. Nur Banu Vs. Noor Mohd. (1983) 35 DLR (AD) 182.

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.

Acquisition and Requisition of the Immovable of the Property Ordinance, 1982
Section 44 r/w
Transfer of Property Act, 1882
Section 107
Registration Act, 1908
Sections 17, 49
The plaintiffs could not succeed on the weakness of the defendants’ case–– The plaintiffs would not be entitled to any claim on the land solely based on an entry in the revenue record since the revenue record does not confer title to the property nor do they have any presumptive value on the title. ––Since the plaintiffs have failed to prove their settlement, they are not entitled to get any decree. The trial Court has committed a serious error of law in decreeing the suit and directing the Government to pay compensation to the plaintiffs. The High Court Division in First Appeal, without ascertaining whether the plaintiffs were entitled to get a decree or not, erroneously noted the order of abetment of appeal which has caused a total failure of justice. Both the Courts have misappreciated the evidence and ignored the weight of evidence on record. ––Appellate Division finds merit in the appeal. The appeal is allowed. The judgment and decree passed by the trial Court is hereby set aside. The judgment and decree dated 15.06.2016 passed by the High Court Division is also set aside. .....Bhawal Raj Court of Wards Estate =VS= Nahar Haider Nannu, (Civil), 2022(2) [13 LM (AD) 506] ....View Full Judgment

Remand the case–– It is well settled that the lower appellate Court being the last Court of fact and since that Court found title and possession of the plaintiffs in the suit land, same cannot be reversed until and unless the findings are perverse in law–– The Title Suit No.525 of 1980 filed by the plaintiff-respondents for declaration of title and also for partition was dismissed by the trial Court. Thereafter, the plaintiff preferred appeal being Title Appeal No.66 of 1989 before the learned District Judge, Khulna which was ultimately heard by the learned Joint District Judge and dismissed the appeal by affirming the judgment and decree of the trial Court. Hence, the plaintiff preferred Civil Revision No.2626 of 1991 before the High Court Division and obtained Rule and ultimately the rule was made absolute sending the case on remand with direction upon the Court of appeal below to dispose of the appeal by giving finding on Exhibit-1, i.e. patta dated 19.03.1937, deed of sale dated 19.10.1963 (Exhibit-2) and the possession of the suit land based on oral and documentary evidence produced by the parties.
The High Court Division also found that the appellate Court considered the material evidence in detail while giving findings as to patta (Exhibit-1), sale deed (Exhibit-2) and possession in favour of the plaintiffs and as such, Appellate Division is of the view that the appellate Court rightly reversed the judgment of the trial Court. Having gone through the impugned judgment of the High Court Division, this Division does not find anything to interfere with the same. Appeal is dismissed. .....Abu Zafar Biswas =VS= Golam Rabbani Sheikh, (Civil), 2023(2) [15 LM (AD) 522] ....View Full Judgment

Plaintiff got the settlement as far back as on 15 Chaitra 1355 B.S which corre­sponded to March, 1948 but the Non-agricultural Tenancy Act, 1949 came into force on 20th October, 1949. As such its application in respect of the suit property does not arise at all. Mrs. Nirmala Bala Das vs Ganesh Chandra Dhupia (Mohammad Abdur Rouf J) (Civil) 2ADC274

Lease of immovable property— Registration of the instrument of lease— When necessary—Section 116-- Effect of holding over—
Section 107 of the Transfer of Property Act provides that lease of immovable property for a period exceeding one year can be made by a registered instrument. Lease for a period upto one year, therefore, may be created by unregistered instrument. In that view of the matter lease created for more than one year by unregistered instrument will be valid for or year only. In case of continuing in.ssession after one year, such possession attract the principle of holding over. Khodeja Begum and another Vs. Sagarmal Agarwala and another. 7 BLD (AD) 147.

Admittedly the suit property was Non-Agricultural Property from before 1947 and the same is situated within Khulna Municipal Corporation. The defendants once claimed that they were monthly tenants under Srish Bhattacharjee and thereafter under his sons, Dhirendra and Birendra. They again claimed that they took settlement of the suit property by unregistered Amaldari from Dhirendra and Birendra on 17.05.1950. It is the settled principle of law that settlement of Non-Agricultural land within Municipality cannot be affected by unregistered document. The same must be affected by bilateral registered document executed by both the lessor and the lessee. Non-Agricultural Tenancy Act, 1949 came into force on 28th October, 1949 and according to defendants case they took settlement by unregistered amaldari on 17.05.1950 and as such the same is hit by section 107 of the Transfer of Property Act. Khandoker Ansar Ahmed & Ors Vs. A.T.M. Monsur A U Mallik & Ors 19 BLT (AD) 129

It provides that a lease for immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of any registered instrument the tenancy will be treated as a monthly one.
Haji Md. Mobarak Ali -Vs.-Haji Mofiz Boksh and others. 4 ALR (AD) 2014 (2) 22

Rights and liabilities of lessor and lessee
After a deed of lease has been executed and registered between the parties for 99 years in respect of the case land and delivery of possession has been given to the petitioner, the lease-hold right being admittedly heritable and transferable, the Government cannot cancel the allotment order without cancelling the lease deed as the petitioners right in the land finally accrued on the lease deed.
Government of Bangladesh, represented by the Secretary, Ministry of Works and others Vs. MIs. Eastern Industries (B. D.) Ltd, 14 BLD (AD) 254.

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

Transfer of the Property Act
Section 108(B) r/w
State Acquisition and Tenancy Act
Section 81A
Non Agricultural Tenancy Act
Section 26A
Code of Civil Procedure, 1908
Order 21 Rule 58
Lease deed–– The lessor was entitled to get back the property after expiry of 50 years–– It appears from the lease deed that there was clear stipulation that the lessor agreed with the lessee that lease shall endure and subsist for a period of 50 years, from the 1st day of January, 1957 to 21st day of December, 2007. From that aforesaid condition of the lease and pursuant to the provision of section 108(B) of the Transfer of the Property Act, it is apparent that the lessor was entitled to get back the property after expiry of 50 years. After expiry of that 50 years tenure, the lease hold rights of the appellants have been extinguished. .....Abdul Halim Gaznabi =VS= M.M. Badsha Shirazi, (Civil), 2023(2) [15 LM (AD) 529] ....View Full Judgment

Doctrine of frustration— When applicable—Section 56 of the Contract Act—
In case of destruction of material part of the structure of tenancy, the tenancy may be put to an end with the option of the tenant. But when the entire subject-matter of tenancy is destroyed, section 56 of the Contract Act will apply. Azizur Rahman and others Vs. Abdus Sukur and others. 4 BLD (AD) 287.

Material defect in the property
The provisions of section 108 of the Transfer of Property Act can be invoked only if the plaintiff specifics the material defect in the property with reference to its intended use. and alleges that the defendant was aware of such defect and not the plaintiff and the plaintiff would not with ordinary care discover such defect. Hazi Abdul Karim Vs. Sk. Ali Mohd. (1959) 11 DLR (SC) 313.

Attornment—contention that mere deposit of rent in the name of plaintiffs predecessor-in-interest did not ipso facto prove attornment by the defendant could not be considered as it is found that the question of attornment was not raised in the pleading or in the proceedings at any time. Shambh Nath Saha vs Alfazuddin Ahmed 41 DLR (AD) 27.

Attornment—
It is not necessary for the defendant to attorn to the plaintiff for establishing such relationship. Attornment by the tenant is not necessary to confer validity of the landlord's right under the subsisting tenancy. The tenancy continues and the default of the defendant in payment of rent makes her liable for eviction. Selina Begum vs Azizun Nessa 6 BLC (AD) 115.

If the lessor transfers the property leased, the transferee acquires the right of the lessor and if the lessor so elects, the transferee shall be subject to all the liabilities of the lessor as to the property transferred. Since the plaintiffs acquired right, title and interest in the suit property through Bidyanath whose title was confirmed by sole decree passed in Title Suit No. 102 of 1958, it cannot be said that the defendants are not tenants under the plaintiffs in the face of Ext.7, 8(a), 9 & I2(b). Khandoker Ansar Ahmed & Ors Vs. A.T.M. Monsur All Mallik & Ors 19 BLT (AD) 129

Rights of lessor's transferee.
This section provides that if the lessor transfers the property leased, the transferee acquires the right of the lessor and if the lessee so elects, the transferee shall be subject to all the liability of the lessor in respect of the property transferred. In this case the plaintiffs acquired right , title and interest in suit property through Baidyanath whose title was confirmed by compromise decree passed in Title Suit No. 102 of 1958, and as such it can not be said that the defendants are not tenants under the plaintiffs, particularly in the face of Rent Receipts witnessed by Exts 7,8(a),9 and 12(b).
Khondker Ansar -Vs.- A.T.M. Monsur Ali Mallik 2 ALR (2013)(AD) 209

When there is lease by registered instrument coupled with delivery of possession there cannot be any cancellation of lease by implication. Sudangshu Jaladash and others vs Shahabuddin 52 DLR (AD) 119.

Implied surrender— Surrender of an under tenancy right need not be in writing. It may be inferred from act and conduct of parties as well. Md Jashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289.

There is no provision of law in determining a tenancy on the ground of a tenant becoming "an undesirable tenant" unless the tenant comes within the mischief of forfeiture under section 111 (g) of the TP Act. Maria Keshi D'Rozario vs Hasan Moises Ltd 41 DLR (AD) 135.

In a case of forfeiture of tenancy for denial of title, written notice of lessor's intention to: determine the lease is not compulsory as the cause of action is the denial of the landlord's title resulting in determination of the tenancy. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

Only requirement of clause (g) is that the lessor does some act showing his intention to determine the lease and there is no reason why the lessors election by way of a notice must be prior to the institution of the suit. In a case of forfeiture of tenancy for denial of title, written notice of lessor's intention to determine the lease is not compulsory and must be optional as the notice is not a part of the cause of action for such eviction and that the cause of action is the denial of the landlord's title resulting determination of the tenancy by forfeiture. Zohra Khatton & Ors. Vs. Ekamul Haque Chowdhury & Ors. 10 BLT (AD)-171

In the case of forfeiture of a tenancy for denial by the lessee of title to the immovable property in the lessor, a written notice to the lessee of intention to determine the lease is not compulsory as the notice is not part of the cause of action for eviction. The cause of action is the denial of the landlord’s title resulting in determination of the tenancy by forfeiture. Muhammad Ishaque v. Ekramul Haque Chowdhury and others, 22 BLD (AD) 8.

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

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

'Holding over' and 'continuing tenant as a statutory right'.
The appellant is not 'holding over' within the meaning of section 116 of the Transfer of Property Act nor is .he a tenant by sufferance. Appellant is a tenant under section 2(8) of the PRC Ordinance—Appellant entitled to benefit of section 18(5) of the PRC Ordinance, subject to the fixation of rent and other conditions for a fresh tenancy. Maria Keshi D'Rozario vs Hosan Moises Ltd 41 DLR (AD) 135.

Holding-over—Tenants con­tinuous possession with landlord's assent creates an implied contract constituting a tenancy by holding—over. Such a tenancy cannot be created by tenant's continuance of possession alone—there must also be the assent of the landlord, which may be expressed or implied. It may be evidenced by acceptance of rent or by other circumstances. Where the lessor dissents there cannot be any holding-over. Absence of dissent will not necessarily imply assent, but from the tenant's continuous possession for a long period, without contrary indication from the landlord may constitute an implied assent. Implied assent is a question of fact inferable from the length of possession and other circumstance excluding an inference of landlord's dissent. Siddik Ali vs Nurun Nessa Khatun 43 DLR (AD) 3.

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

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

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

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

For declaration of title and recovery of khas possession–
The provisions of section 116 of the Transfer of Property Act are applicable where the tenant remains in possession of the lease-hold property after determination of the lease granted to the tenant and his continuing possession is assented to by the landlord. A tenant, who surrendered possession, does not come within the meaning of the words "remains in possession" of this section. .....Israil Kha & others =VS= Syed Anwar Hossain & others, (Civil), 2016-[1 LM (AD) 277] ....View Full Judgment

Section 117 excludes only agricultural lease.
There is no indication in section 129 restricting its application only to a particular class of las, that is, non-agricultural land, as section 23 of the Non-Agricultural Tenancy Act, 1943 has provided. Section 117 of the Transfer of Property Act excludes from its operation only agricultural leases but not other dispositions. Jabed Ali Vs. Abu Shaikh (1983) 35 DLR (AD) 31.

Exchange—what it is—An exchange is a mutual transfer between two persons of the ownership of properties, but either both the things should be money or neither of them should be money. A party to the exchange when deprived of the thing received in exchange has his remedy under section 119. A third party too can raise the question of title of a party to the exchange. Sahera Khatun and another vs Anwara Khatun & others 44 DLR (AD) 86.

An exchange is a mutual transfer between two persons of the ownership of properties, but either both the things should be money or neither of them should be money. Therefore, transfer of ownership is a pre-condition for a valid exchange. When there is a question of title to be decided on the basis of an exchange deed, the party claiming title must prove that he had ownership in the property exchanged. Mst. Sahera Khatun and another Vs. Anwara Khatun and others, 13 BLD (AD) 171.

The Easements Act, 1882
Section 60 r/w
Transfer of Property Act, 1882
Section 118
An exchange, value of which exceeds Tk.100/-, is to be registered– The Appellate Division held that an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee. Appellate Division is of the view that the High Court Division on correct assessment of the evidence and the materials on record arrived at a correct decision. Accordingly the appeal is dismissed. .....Munshi Firoz & others =VS= Ruhul Amin & others, [1 LM (AD) 434] ....View Full Judgment

An exchange, value of which exceeds Tk.100/-, is to be registered–
The defendants contended that the records of right stand in their names and accordingly they acquired good title and interest in the suit land but if the above contention is sustained flood gates will be opened to those persons whose name have been recorded in the records of right and further the settled principles of law in this regard is otherwise; the defendant claimed the suit land on the basis of exchange between the original plaintiff and defendant and not on the basis of adverse possession and both the courts below concurrently found that the defendant failed to prove any exchange; the exchange was false and that in terms of section 118 of the Transfer of Property Act an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee. .....Munshi Firoz Elahi =VS= Ruhul Amin alias Lablu, (Civil), 2018 (2) [5 LM (AD) 387] ....View Full Judgment

Exchange—what it is—An exchange is a mutual transfer between two persons of the ownership of properties, but either both the things should be money or neither of them should be money, a party to the exchange when deprived of the thing received in exchange has his remedy under section 119. A third party too can raise the question of title of a party to the exchange. Sahera Khatun and another vs Anwara Khatun & others 44 DLR (AD) 86.

It is seen from the evidence on record that the PWs except making general statement that Mohendra Kumar Nath did not execute the deed of gift and that the evidence of PWs being negative in nature relating to the execution and registration of the deed of gift by Mohendra Kumar Nath, the High Court Division was not in error in setting-aside the judgment of the lower appellate Court affirming the judgment of the trial Court. Shushil Chandra Nath vs Shanjib Kanti Nath 12 BLC (AD) 131.

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

The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Anny Ansari 6 BLC (AD) 85.

The High Court Division has rightly found that the suit is maintainable in its present form also found that the suit property was a part of joint property of the Hindu joint family which has correctly came to the hand of Govinda Banik through amicable settlement and that ejmali property situated in any part of the world may be brought in the hotch-pots of the suit according to Section 2 of the Partition Act, 1898. Provas Chandra Banik vs Naresh Chandra Banik 16 BLC (AD) 62.

Appellate court below allowed the appeal in part holding that the deed was not acted upon since there is no evidence that possession was delivered to the defendant no.1. This finding is not correct. Where the instrument of gift has been registered, delivery of possession is not essential for the validity of a gift by a Hindu. ...Renuka Rani Mondol Vs Biswajit Mondol & anr, (Civil), 5 SCOB [2015] HCD 33 ....View Full Judgment

‘Youtuka’, that is, gift of immovable property made as consideration of marriage at the time of nuptial fire is valid.
The Appellate Division observed that as regards, the deeds of gift dated 07.10.1941 (exhibit-3), Appellate Division finds that in the said deed Panchanani was described as the wife of Sharat Chandra and as such, the claim of the defendants that Panchanani was concubine of Sharat Chandra has been falsified. Moreover, continuous living together for a long time proves that Sarat Chandra and Panchanani were husband and wife. In fact, Panchanani was the wife of Sharat Chandra and that she inherited ‘Ka’ schedule land and half of ‘Kha’ schedule land as ‘Youtuka’. It is contended that Dharijyamoyee had no right to make a deed of gift in favour of Panchanani and such gift was illegal and as such, half of ‘Kha’ schedule property did not pass to Panchanani. The appellate Court found that the deed of gift made by Dharijyamoyee in favour of Panchanani on 07.10.1941 was a valid document. The appellate Court found that even if it is found that Joytish Chandra did not make oral gift to Dharijyamoyee, Dharijyamoyee got half of ‘Kha’ schedule land after death of his son Joytish Chandra Shaha as life estate. The appellate Court rightly found that Dharijyamoyee could legally transfer the property which she got in life interest to Panchanani for legal necessity. The appellate Court noted that Dharijyamoyee became blind and Panchanani used to look after her and that prompted Dharijyamoyee to make gift of half of ‘Kha’ schedule land to Panchanani. Thereafter, Panchanani validly acquired half of ‘Kha’ schedule land by the deed of gift dated 07.10.1941. Banomadhab’s sister’s son, Tustalal died on 30.03.1965 before Panchanani, who died on 05.12.1967. Therefore, Tustalal inherited nothing. As regards possession, the appellate Court found that the plaintiffs have been in possession in part of the suit land. The High Court Division, however, on consideration of the oral evidence and the S.A. khatians, exhibits-2(a)-2(f) and the rent receipts, exhibit-5 series found that the plaintiffs are in possession of the entire suit land. The finding of possession of the High Court Division having been based on proper appreciation of evidence on record does not call for interference. Abdur Rahim Molla. Hazera Khatun and others.
Md. Abul Hossain Khan. -Vs.- Prosenjit Kumar Shaha and others (Civil) 10 ALR (AD) 278-282

The Hindu law
The Transfer of Property Act, 1882
Section 123
The rules of pure Hindu law that the delivery of property is essential to the validity of gift has been abrogated– The trial Court was absolutely wrong in holding that according to the Hindu law the possession must be handed over to the donee inasmuch as in view of the provisions of section 123 of the Transfer of Property Act, the rules of pure Hindu law that the delivery of property is essential to the validity of gift has been abrogated. The Appellate Court on detailed discussion of the provisions of section 123 of the Transfer of Property Act reversed the said finding of the trial Court and it also rightly relied upon the case of Hari Kison Pandy-Vs-Nages Wari Debi and others, 8DLR 65. Mr. Bhuiyan also conceded that the Appellate Court took the correct view as to the non requirement of delivery of possession of the gifted land to the donee to make a registered deed of gift by a Hindu effective in view of the provisions of section 123 of the Transfer of Property Act. We find merit in the appeal and accordingly the same is allowed. ...Tapash Kanti Majumder=VS=Sailandra Kumar Majumder, (Civil), 2020 [9 LM (AD) 59] ....View Full Judgment

Specific Relief Act, 1877
Section 42 r/w
Transfer of Property Act, 1882
Section 129 r/w
Registration Act, 1908
Section 17 & 49
Declaration of title– The plaintiff filed copy of electricity bill, copy of holding tax receipt etc. from which it is seen that plaintiff, Shehida Begum, during the course of possessing the suit premises, has paid all those taxes and bills. The documentary evidence goes to show that the plaintiff is in peaceful possession of the suit land. The facts, circumstances as well as other materials on record as has been divulged in our discussion, led us to hold that the learned Judge of the Single Bench of High Court Division did not commit any wrong in reversing the judgment and decree of the lower appellate Court who as being a final court of facts totally mis appreciated and misdirected in reversing the Judgment and decree of the trial court which is based on sound reasoning. The appeal is dismissed without any order as to costs. ...Ahammed Hosain =VS= Shahida Begum, (Civil), 2021(2) [11 LM (AD) 604] ....View Full Judgment

Provision of section 129 is applicable to Muslims only when transferring property by gift. Jabed Ali Vs. Abu Shaikh, being dead his heirs: Md. Naimuddin and ors. (1983) 35 DLR (AD) 31.

It is not incumbent on the landlord to call and examine the postal peon who delivered the notice at the premises of the addressee. Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.

The right of redemption of the mortgagor:
It is this Court’s view that the distinction between legal and equitable rights and interest does not exist under the existing legal régime governed by the Transfer of Property Act, 1882. Thus, the right of redemption of the mortgagor is not an equitable right but a legal right conferred by statute. Therefore, a mortgagor under Bangladeshi law always retains a legal interest before and after the expiry of the date of payment. Therefore, the right of redemption is not an equitable form of relief to be given on such terms as the court considers equitable but a statutory right conferred and available only upon terms statutorily defined and stated. In view of the above, it is found that the Judgment- Debtors/Respondents being mortgagors of the property in question possessed an inalienable right to redeem their property at all material times. The right of the Respondents over the mortgaged property is, accordingly, found by this Court to have been created when the property was mortgaged. Such right remained inalienable and in fact even after expiry of the date of repayment. ...M. A. Hashem Vs. Artha Rin Adalat, Dhaka & ors, (Civil), 6 SCOB [2016] HCD 19 ....View Full Judgment

Pendente lite nihil innovature–
ইজারা বাতিল সম্পত্তি হস্তান্তর আইনের অন্যতম একটি মূলনীতি হলো--"pendente lite nihil innovature"অর্থাৎ মামলা চলাকালীন মামলার বিষয়বস্তুতে নতুন কোন রাইট ইন্টারেস্ট সৃষ্টি না করা। সুতরাং অত্র মামলায় ভিত্তিহীন, বেআইনি মৌখিক আদেশের ভিত্তিতে নতুন লীজগ্রহীতার অনুকূলে বেআইনিভাবে প্রদেয় লীজ পূর্বের লীজগ্রহীতার কোন অধিকারকে ক্ষতিগ্রস্ত করবে না- যথাযথ কর্তৃপক্ষের নিকট আপীল চলাকালীন সময়ে পূর্বের লীজগ্রহীতার লীজ বাতিলকরণ প্রক্রিয়া সম্পূর্ণ বেআইনি ও ভয়েড অব ইনিশিও(void ab initio)। সুতরাং এ বিষয়ে পরবর্তী যা কিছু সিদ্ধান্ত বা আদেশ হয়েছে সব কিছুই বেআইনি। এ বিবেচনায় এটা বলা বেআইনী হবে না যে নজরুল ইসলাম নামীয় লীজ বাতিল এবং তাকে উচ্ছেদ করা সম্পূর্ণ বেআইনি ও অবৈধ। সম্পত্তি হস্তান্তর আইনের অন্যতম একটা মূলনীতি হলো--"pendente lite nihil innovature"অর্থাৎ মামলা চলাকালীন মামলার বিষয়বস্তুতে নতুন কোন রাইট, ইন্টারেস্ট সৃষ্টি না করা। সুতরাং অত্র মামলায় ভিত্তিহীন, বেআইনি মৌখিক আদেশের ভিত্তিতে নতুন লীজগ্রহীতার অনুকূলে বেআইনিভাবে প্রদেয় লীজ পূর্বের লীজগ্রহীতার কোন অধিকারকে ক্ষতিগ্রস্ত করবেনা।
নথি পর্যালোচনায় দেখা যায় যে, ১ নং প্রতিবাদী নজরুল ইসলামের লীজ বাতিল করতঃ আবেদনকারীগণের অনুকূলে লীজ প্রদান করার জন্য টি.এন.ও. কে জেলা প্রশাশক মৌখিকভাবে আদেশ দেন। জেলা প্রশাসকের মৌখিক এই আদেশ থেকে প্রতীয়মান হয় যে ১ নং প্রতিবাদী নজরুল ইসলামের অনুকূলে লীজ বাতিলের আদেশটি পরোক্ষভাবে জেলা প্রশাসকেরই আদেশ ছিল। এই আদেশের বিরুদ্ধে ১ নং প্রতিবাদী নজরুল ইসলাম যথাযথ কর্তৃপক্ষ অর্থাৎ জেলা প্রশাসক বরাবর আপিল না করে অতিঃ বিভাগীয় কমিশনার বরাবর আপিল করেন। যেখানে জেলা প্রশাসক নিজেই পরোক্ষভাবে আদেশ প্রদান করেছেন সেখানে উক্ত আদেশের বিরুদ্ধে জেলা প্রশাসকের আপিলেট কর্তৃপক্ষে হওয়ার আইনগত কোনো সুযোগ নেই । সুতরাং ১ নং প্রতিবাদী অতিঃ বিভাগীয় কমিশনার বরাবর ভিপি আপিল নং ১৩/৯৯ দায়ের করে মামলার পদ্ধতিগত সৌন্দর্য নষ্ট করেছেন বলে প্রতীয়মান হয়না।
অযৌক্তিক অজুহাতে ১ নং প্রতিবাদীর ভোগদখলকৃত ইজারা বাতিল করে আপিলকারীগণের অনুকূলে ইজারা প্রদান করার সিদ্ধান্ত সম্পূর্ণ বেআইনি এবং ভিত্তিহীন। এমতাবস্থায় আপিলকারীগনের আনীত আপিলটি সম্পূর্ণ ভিত্তিহীন ঘোষণা করা হইল।...মাসুদুর রহমান(মোঃ) বনাম মোঃ নজরুল ইসলাম, (Civil), 2021(1) [10 LM (AD) 207] ....View Full Judgment