Introduction to the Transfer of Property Laws of Bangladesh

Transcription

1 Chapter-One Introduction to the Transfer of Property Laws of Bangladesh The word property is the outcome of human civilization. In the early stage of human civilization man had no idea of property or properties were not belonging to any human being. Man were holding property or using it for his own purpose but they had no intention to retain the possession rather they were interested to move one place to another for their livelihood. When the number of people increases, they concerned regarding the values of the property and even used force to oust others or to capture other s belongings whatever found. The idea of group property came in human history at first and subsequently, in modern time, we are now holding individual property. In every state, democratic, communist or socialist, the idea of state property is prevailing. The state can acquire any property for the greater interest of the public 1 with the payment of due compensation thereof to the victim. Even the natural resources 2 and treasurer-troves 3 are considered as the property of the State. The ownership is the idea of modern civilization that is considered as a right and also protected by the state machinery. A person must fulfill the legal requirements to be the owner of a property which is mentioned in various laws in a fragmented way, e.g. The Registration Act, 1908; the Transfer of Property Act, 1882; the Sale of Goods Act, 1930; the Insurance Act, 1938; The Company Act, 1994 etc. Property & its various types 4 Article-152 of the constitution of Bangladesh states that, property" includes property of every description movable or immovable corporeal or incorporeal, and commercial and industrial undertakings, and any right or interest in any such property or undertaking; Section-2 (11) of the Sale of Goods Act, 1930 states that "Property" means the general property in goods 5, and not merely a special property; Right to property is a fundamental right 6. 1 Article-42 of the constitution of the People s Republic of Bangladesh; 2 Article-143 of the constitution of the People s Republic of Bangladesh; 3 The Treasure-Trove Act, 1878, Vol.VI, Bangladesh Code; The Mines Act, 1923 ; The Mining Settlements Act, 1912 ; খ ন o খ নজ সmদ ( নয়ntণ o unয়ন) আiন, For details, Please see- Rights and Proprietary rights chapter of this book; 5 To see the definition of goods please see foot note no.08 of this book;

2 Primarily, property can be divided into two types- (i) Corporeal & (ii) Incorporeal. Corporeal property can again be divided into two types-(a) movable and (b) immovable property. Sometimes, corporeal property is being divided into real and personal property. Incorporeal property is of two kinds: rights in re propria and rights in re aliena or encumbrances. Transfer of property Transfer of property means handover of the property either by the parties or by operation of Law. Section-5 of the Transfer of Property Act, 1882 states that In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and to transfer property is to perform such act. In this section living person includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. Section-2 of the Bangladesh Transfer of Immovable Property (Temporary Provisions) Order, 1972 states that In this Order, unless there is anything repugnant in the subject or context, transfer includes transfer by sale, exchange, gift, heba, will, mortgage, lease, sub lease or any other manner of transfer or any agreement for such transfer or change of management through a power of attorney or otherwise, but does not include- (i) a mortgage to the Government or to a local authority or to a Scheduled Bank or to a statutory Corporation or to a Co operative Society, and (ii) any transfer by the Government or any local authority. Relevant Laws on the Transfer of Property Based on the various types of transfer, we can divide laws into various categories and discuss their relevant provisions in short. 6 Article-42, et al;

3 7 Section-2 of the Succession Act, 1925 states as follows: Sec.2 (b) "codicil" means an instrument made in relation to a will and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will; Section-2 (f) "probate" means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator; Sec.2 (h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death; Will is commonly knows as a testamentary documents or bequest; No registration is necessary for will but a will may be deposited to the Registration office under sections-42 to 46A of the Registration Act, 1908; Section-59 to 111, interalia, of the Succession Act, 1925 states on will; IN Muslim Law, the synonym of will is wasiyat. Will mean a deposition or declaration by which the person making it (the testator) provides for the distribution or administration of property after his death. It is always revocable by him. Infants and patients not cpable to realize the consequences of his act are incapable of making wills. Generally, a will is void if it is made in the name of the person who is not yet born. A Muslim person can will ⅓ of his property excluding his necessary expenditure for funeral ceremony and debt. A will may be revoked by (i) another later will; (ii) by destruction, burning or tearing by the testator, or by some person in his presence and by his discretion, with the intention of revoking it. 8 For details- please see chapter-six of this book;the definition of sale is mentioned in chaptertwo of this book; Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised (sec.54 of the T.P. Act,1882); Sections-4,5 of the Sale of Goods Act, 1930 also states the provisions of sale, contract for sale and the procedures of sale of goods etc; 9 Section-65 to 72 of the Code of Civil Procedure, 1908 states the provisions of Sale which indicates auction sale; 10 For details- please see-chapter seven of this book on Law on Mortgage. The provisions of mortgage are mentioned from sections-58 up to 99 of the Transfer of Property Act. In the Contract Act, 1872 pledge a synonym to mortgage, applicable for a movable property is discussed from sections-172 to 181; Mortgage is a security. Mortgage is the transfer of interest in specific immovable property to the lender called mortgagee. The object of mortgage is to secure the payment of a loan or to secure the performance of a contract. 11 Section-172 of the Contract Act, 1872 states that- The bailment of goods as security for payment of a debt or performance of a promise is called "pledge". The bailor is in this case called the "pawnor". The bailee is called the "pawnee".

4 12 For details- please see chapter-eight of this book; The provisions of lease are mentioned from sections 105 to 117 of the T.P. Act, 1882; Section-105 of the T.P. Act states that A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Definition of "Lessor", "lessee", "premium" and "rent" The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. 13 Section-2 of the State Acquisition and Tenancy Act, 1950 states that sec.2(22) rent means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant; When rent is collected by renting a house, it is called house-rent; 14 For details-plese see chapter-nine of this book; The various provisions of Gift are mentioned from sections-122 to 129 of the T.P. Act, Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee; 15 Heba is the synonym of gift used in Muslim Law. Heba or Gift is mainly four kinds: (i) Oral gift (ii) written gift (iii) Onerous gift (iv) Heba-bil-awaz (v) Heba-bil-shart-ul-awaz.and (vi) Marz-ul-maut or gift in contemplation of death (Donatio mortis Causa). In Islam sadka is one kind of gift where the aim of the gift is to get love, grace and mercy of the almighty Allah. 16 For details-lease see the annexure of this book; The provision of exchange is mentioned from sections-118 to 121 of the Transfer of Property Act, 1882; Section-118 of the T.P. Act states that When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an exchange. 17 The provisions of Charges are mentioned from sections-100 to 104 of the Transfer of Property Act, Charge is also a security but different from mortgage. 18 For details-please see chapter two of this book; Sections-130 to 132 of the Transfer of Property Act states on the Provisions of actionable claim 19 Foe details-please see- Ahamuduzzaman, Legal History and Legal System of Bangladesh, Chapter- XII,2 nd edn-2007; Section-96 of the State Acquisition and Tenancy (SAT) Act, 1950, section-24 of the State Acquisition and Non-Agricultural Tenancy Act (SANAT), 1949 and section-4 of the Partition Act, 1893 states the procvisions of pre-emption; According to Hedaya preemption is such kinds of right through which the owner of an immovable property entitles to repurchase another immovable property which is sold to a third party/ stranger by the owner of that property. The following persons are entitled to buy a land through pre-emption: a) Co-owner or Shaf-e-sharik;

5 b) Person entitled through easement or Shaf-e-Khalit; and c) Owner of the attached immovable property or Shaf-e-jar. The right to preemption derives not from the date of sale but from the date of registration; Under the BT ACT, 1885 the right to claim or file a suit of preemption was three years as mentioned in section 26 (f) which is now decreased by the SAT Act, 1950 and SANAT Act, 1949, upto 4 months from the date of receiving notice of selling the property or from the date of knowledge of sale. If the preemptor can prove the transfer as fraudulent, his claim may prevail at any time as mentioned in sections 14, 18 and in Article 120 of Limitation Act from the date of the knowledge of the fraudulent transfer. In Order 20 Rule-14 of CPC if the claim of the preemptor is finally decreed than all the usufructuary benefit will go to the preemptor and if the property was mortgaged, it will be executed from the date of foreclosure or redemption. 20 Partition indicates the separation of the property as per the share of the heirs either by themselves or by Courts by filing a partition suit; Partition suit relates to immovable properties; 21 Section-2 of the State Acquisition and Tenancy Act, 1950 states that -2 (26) succession includes both intestate and testamentary succession; For movable properties of the deceased, the heirs may file a suit for succession before the cometent Court; 22 The inheritance laws of Bangladesh are governed by the personal laws of various communities; In Bangladesh Muslim inheritance law is governed by Muslim inheritance (sunni) law and Hindu inheritance law is governed by Dayabhaga school; In Muslim Law, A person may claim his right to the property of a deceased person either for affinity or Sabab or for Nasab or blood relationship. The sharer of principal categories may be divided into three types: (i) Jabil Furuz or Quranic Sharer; (ii) Asaba or Residuary; (iii) Jabil Arham or Distant kindred; The following six people will never be excluded from getting their share to the property of a deceased person: (i) Father, (ii) Mother, (iii) Daughter, (iv) Son, (v) Husband and (vi) Wife; 23 Section-2 of the Company Act, 1994 states that- (ধ) শয় র ব ল ত ক m ন র ম লধ নর ক ন a শ ক ব ঝ i ব eব বয k ব aবয kভ ব ক ন ক o শয় রর প র থকয pক শ প i ল সi ক বয ত ত, aনয নয কo ei স j র aন tর ভ k হi ব; Therefore a share may be defined as an interest in the company entitling the owner thereof to receive proportionate part of the profits, if any, and of a proportionate part of the assets of the company upon liquidation. Sahe may be of two types- (i) Preference share and (ii) Equity share; Preference share can be classified as stated below: 1. Cumulative or Non-Cumulative. 2. Participating preference shares or Non-Participating preference shares. 3. Convertible preference shares or Non-Convertible preference shares. 4. A preference share may be redeemable or irredeemable. When all the shares of a company have been fully paid up, they may be converted in to stock if so authorized by the articles. Distinction between Shares and Stocks The differences between share and stock are given below, 1. The shares of the same company are of equal nominal value. But stock may be divided into unequal amounts. 2. Shares cannot be issued or transferred in fragments. Thus a member cannot hold half a share. But a stock can be transferred in fragments.

6 3. Shares may be partly paid. Shares can be converted into stock only when fully paid up. 4. Stock cannot be issued when a company is initially formed. Shares are issued when a company is formed. 5. Shares are numbered consecutively. Stocks are not numbered. Shares can be directly issued to the public whereas stock cannot be issued directly. Debenture means the loan of the company; A debenture holder will get preference over a share holder in time of liquidation; The devbenture holder will get interest but the shareholder shall get profit and dividend; The debenture holder shall bear no liability but the shareholder shall bear liability commonly, as per his share amount; 24 Sections-3-17 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 states the provisions of acquisition and sections of the same Act states the provisions of requisition. Whenever it appears to the Deputy Commissioner that any property in any locality is needed or likely to be needed for any public purpose or in the public interest, he shall cause a notice in the prescribed form to the owner of that property to vacate it within a specific period of time; If the property is taken permanently, it is called acquisition and if the property is taken temporarily, it is called requisition. There is a provision of compensation to the occupient i.e. owner affected by such acquisition or requisition as mentioned in sections-10, 10A and 21 of the Act; 25 Attachment is used in civil sense; It means to take a property for the purpose of executing a court order; Attchment must be done by the civil Court for the execution of a decree or to save or defend or protect a property from unlawful transfer during the pendency of a suit; Sections of the Code of Civil Procedure, 1908 provides a list of properties that may be the subject matter of attachment; Order-XXXVIII of the CPC also states provisions on attachment; Section- 88 of the Cr P C states the power of the Court to attach property of person absconding; Section- 145 of the Cr P C also states the provisions of attachment to curb public nuisance; 26 Sezure is commonly used in criminal law; Section-62 of the CPC also states to seizure of properties; Sezure is used to indicate movable properties; Section-550 and 551 of the Cr P C states the provisions on seizure by police; Section-53 of the Cr P C states the police s power to seize weapon; 27 Section-2 of the Alluvial Lands Act, 1920 states that (a) "alluvial land" means land which is gained from a river or the sea in any of the ways referred to in the Bengal Alluvion and Diluvion Regulation, 1825, or the Bengal Alluvion (Amendment) Act, 1868, and includes reformations in situ; 28 Dilluvion is just opposite to the word alluvion; When any property is destroyed by river erosion it is called dilluvion; 29 Allotment means to allot a property by any means of transfer ordinarily for a specific period of time or in perpetuity either by the government or any authority competent thereof; In Dhaka City Corporation, all the allotments are conducted by the RAJUK as established in 1996 replacing the DIT under the Town Improvement Act, 1953; In the district level it is conducted by the Municipality Authorities under section-95 of the Paurshava Ordinance, 1977; 30 Section-2 of the Waqf Ordinance, 1962 states that- (10) waqf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim Law as pious, religious or charitable, and includes any other endowment

7 or grant for the aforesaid purposes, a waqf by user, and a waqf created by a non Muslim. Explanation. When more than fifty per cent of the net available income of a waqf is exclusively applied for religious and charitable purposes, such a waqf shall be deemed to be a public waqf within the meaning of clause (e) of sub-section (1) of section 85 of the Non-Agricultural Tenancy Act, 1949 and shall be deemed to be a trust for public purposes of a charitable or religious nature within the meaning of section 92 of the Code of Civil Procedure, 1908, Sec.2 (11) waqf deed means any deed or instrument by which a waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication has been varied; Sec.2 (12) waqf property includes property of any kind acquired with the sale proceeds of, or in exchange of, or from the income arising out of, waqf property, and all offerings made, or charities consecrated or contributed, on or to waqf property; and Sec.2 (13) waqif means any person creating a waqf. Sec.2 (6) mutawalli means any person appointed either orally or under any deed or instrument by which a waqf has been created or by a competent authority to be the mutawalli of a waqf, and includes a naib mutawalli, any other person appointed or entrusted by a mutawalli to perform the duties of a mutawalli, the guardian of a mutawalli who is a minor or of unsound mind and any person or committee for the time being managing or administering any waqf property as such. Explanation. A Receiver appointed under the provisions of the Code of Civil Procedure, 1908, or under section 145 or 146 of the Code of Criminal Procedure, 1898, to manage or administer a waqf property, or a Common Manager managing any waqf property under the provisions of any law for the time being in force, shall be deemed to be a mutawalli for the purposes of this Ordinance; 31 Zakat is the 3 rd pillar of Islamic Shariah and belief; A muslim having properties for specific period of time excluding his/ her debt and needs is bound to pay a sum of money or part of the properties to the distressed which is known as zakat; 32 The elaboration of the term NGO is Non-governmental Organizations. The NGOs of Bangladesh may be divided into two types based on its functions such as (i) Non-development NGOs and (ii) Development oriented NGOs. NGOs are generally voluntary, nongovernmental and non profitable organizations. The NGOs may be divided into two categories based on their locality or territory i.e. (i) Foreign and foreign aided Bangladeshi NGO and (ii) Local NGO. The registered NGOs are divided in to 3-categories based on their economic functions such as- (a) NGOs implementing less than 25 lac taka are small NGOs; (b) NGOs implementing more than 25 lac taka project and less than 1-crore taka project are medium NGOs; and (c) NGOs implementing more than 1-crore taka project are big NGOs. The NGOAB was established in 1991 to regulate the functions of the NGO s in Bangladesh; 33 Section-2 of the Cooperative Societies Act, 2001 states that (20) সমব য় স ম ত aর থ ei আi নর aধ ন নব nত ব নব nত ব লয় গণয ক ন সমব য় স ম ত; Section-8 of the Act classifies cooperatives into various types such as-8৷ (1) uপ-ধ র (2) eর বধ ন স প k, ei আi নর aধ ন নবnন য গয সমব য় স ম তসম হ হi ব নmপ, যথ :- (ক) p থ মক সমব য় স ম ত, aর থ t eমন eক ট সমব য় স ম ত য হ র সদসয স খয হi ত ছ ন য নতম 20 (k ড়) জন eকক বয k (Individual) eব য হ র u dশয হi ত ছ বধ uপ য় স ম তর সদসয দর আর থ- স ম জক aবs র unয়ন: ত ব শর ত থ ক য, eiপ স ম ত uহ র সদসয দর জ ম বnক নয় ঋণ pদ নর জনয গ ঠত হi ল uহ বnক বয ক ন মo a ভ হত হi ব; (খ) কnd য় সমব য় স ম ত, aর থ t eমন eক ট সমব য় স ম ত য হ র সদসয হi ত ছ eকiপ anত 10

8 The above list of the various forms of transfer of property is prepared based on the types of property such as movable, immovable, tangible, intangible etc. The list of the relevant laws mentioned in the column is not exhaustive. A number of laws are also prevailing that may support or provide necessary formalities for transferring a property. The word transfer of a property is not used in the conventional sense. The transfer may be conducted by the parties or by their legal representatives or even by the Court. The necessary laws for transferring a property by the State in exceptional circumstances are also added herewith. History of the Transfer of Property Act, 1882 India, for a long-time, was under the rule of Muslim Rulers, the Sultanate & Mughals. The English came as a merchant but ultimately grasp the (দশ) ট p থ মক সমব য় স ম ত eব য হ র u dশয হi ত ছ uk সদসয স ম ত লর ক জ-কর ম স ভ ব প রচ লন য় সহ য়ত pদ ন eব সমnয় স ধন: ত ব শর ত থ ক য, জ ম বnক বয ক ন মক p থ মক সমব য় সমn য় গ ঠত কnd য় সমব য় স ম ত কnd য় জ ম বnক বয ক ন মo a ভ হত হi ব; (গ) জ ত য় সমব য় স ম ত, aর থ t eমন eক ট সমব য় স ম ত য হ র সদসয হi ত ছ eকi u dশয সm লত anত 10(দশ) ট কn র য় সমব য় স ম ত, eব য হ র u dশয হi ত ছ স র দশবয প uk সদসয স ম ত লর ক জ-কর ম স ভ ব প রচ লন য় সহ য়ত pদ ন eব সমnয় স ধন; বয খয ৷- সমg ব ল দ শর জনয eকi u d শয eক ট জ ত য় সমব য় স ম ত নবnন কর য i ব; (ঘ) জ ত য় সমব য় iu নয়ন, aর থ t eমন eক ট সমব য় স ম ত য হ র সদসয হi ত ছ কnd য় o জ ত য় সমব য় স ম ত৷ (2) ei আiন pবর ত নর প রব নব nত ক ন সমব য় স ম তর সদসয হoয় র k t uপ-ধ র (1) eর দফ (ক), (খ), (গ) ব (ঘ) eর বয তয য় ঘ টয় থ ক ল uk স ম তর নবnন ei ধ র ব ল k হi ব ন, ত ব ei আiন pবর ত নর পর uk uপ-ধ র র বধ ন k ক রয় ক ন সমব য় স ম ত ত সদসয anর ভ k কর য i ব ন ৷ 34 Section-2: In this Act, charitable purpose includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship. 35 Section-20 of this Act states that the following societies may be registered under this Act: Charitable societies, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or public museums and galleries of painting and other works or art, collections of natural history, mechanical and philosophical inventions, instru-ments, or designs. 36 Power of attorney means to give power to someone to act as attorney in favour of the executant; Power of attorney is of three types- (i) General Power of attorney, (ii) Special Power of Attorney and (iii) Irrevocable Power of Attorney; (format of POA is in POA Rule 2015) 37 Money laundering means to earn property in an illegal way or to use property obtained/earned in legal way but use in an illegal means ;

9 power by their diplomatic tactics using the religious enmities among Indians. The transfer of immovable property was governed by the Muslim law or Hindu law and subsequently by the English law and equity before the enactment of the Transfer of Property Act, A few points were also covered by the Regulations and Acts passed by the Governor-General-in-Council. The Courts, in many cases, had to decide according to their own notions of justice and fair play. So, the case-law became confused and conflicting. The Transfer of Property Act, 1882 is not an exhaustive law, as in many cases it does not overrule the personal laws of various communities. Appointment of Law Commission In England, a Law Commission was appointed to prepare a Code of Substantive Law of Transfer of Properties for India. The Law Commission cinsisted of Lord Romilly, M R, Sir Edwards Rayn, Chief Justice of Bengal, Lord Sherbrooke, Sir Robert Lush and Sir John Macleod, who had assisted Lord Macauly in drafting the Indian Penal Code. A draft Bill was prepared by this Commission, and it was sent to India by the Duke o Argyll, who was then Secretary of State for India. It was introduced in the Legislative Council in The Bill was then referred to a Select Committee and it was also sent to the Local Governments for publication and criticism. The Bill was criticized on many points and ultimately the Bill was redrafted and referred to a third Law Commission consisting of Sir Charles Turner, Chief Justice of Madras, Sir Raymond West, and Mr. Whitely Stokes, Law Member of the Council of the Governor General. It appears that not less than seven Bills were prepared before the final Bill was passed into law on the 17 th February, There were many conflicting decisions arose regarding various provisions of the Act. In 1903, some suggestions were made by Mr. Justice Rampani and afterwards Sir Robert Fulton, to amend the Act. They observed as follows: The Transfer of Property Act was passed nearly 25 years ago and was the first Act of the Legislature to embody the provisions of the Bengal Regulations of 1798 and 1806and of the Bombay Regulations of 1827.It is usual to revise the Codes of the Indian Legislature after the periods of 20 years, and it is more necessary to do so in the case of the Transfer of Property Act because- (i) it is the first Act dealing with a branch of law it relates to, and

10 (ii) during the past 25-years a large mass of conflicting case-law on the subject has grown up which it is advisable now either to embody in the Act or to set aside 38. There is scarcely a single section in the chapter on the mortgages in the Transfer of Property Act on which conflicting rulings can not be found 39. The Transfer of Property Act, 1882 was amended in 12 times but no revision was made to the Act up to A committee was appointed to amend the Law consisting of Mr. S R Das, Law member of the Council of the Governor General, Mr. B L Mitter, Advocate-General of Bengal, Dr S N Sen and Mr. Dinshaw Mulla. The Committee suggested the following important amendments in the Act: (i) the omission of the words Hindus and Buddhists in section 2 whereby the provisions of Chapter II would apply to all cases except those governed by a special rule of Mohammedan Law; (ii) a) the provision that registration amounts to notice of registered documents; (b) the provision making constructive notice to an agent to the principal; (iii) the validity of transfer in favour of a class, when some members of the class are unable to take; (iv) the validity of a direction as to accumulation for a certain period and for certain purposes; (v) (vi) (vii) the statutory recognition of the doctrine of part performance; the abolition of the remedy of foreclosure in the case of all mortgages except a mortgage by conditional sale or an anomalous mortgage providing expressly for foreclosure; the provision compelling a mortgage to exhaust his remedies against the mortgaged property before enforcing his personal remedy; (viii) the extension of the principal of subrogation ; (ix) the extension of the principal of merger. The Bill was passed with the above suggestions as a law and enacted as the Transfer of property (Amendment) Act XX of Again it was amended by the Transfer of Property (Amendment) Act, 1944 (Act No. VI of 1944). 38 Shukla, Dr. S N, Transfer of Property Act,pp-1-4; Rpt.2007; 39 Ghosh, DR Rash Bihari, The Law of Mortgage in India edn-3 rd, preface;

11 A lot of amendments were also made to the Law. Throughout this Act, except otherwise provided, the words Bangladesh, Government and Tk. were substituted, for the words Pakistan, Central Government or Provincial Government and Rs. respectively by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973). The law was again amended in 2004 by the Transfer of Property (Amendment) Act, 2004 (Act No. XXVI of 2004). Sections-130A, 135A amended by the Transfer of Property (Amendment) Act, 1944 (Act No. VI of 1944). Sections- 53A, 53B, 53C, 53D and 53E, 54A, 123, 129 again amended in 2004 by the Transfer of Property (Amendment) Act, 2004 (Act No. XXVI of 2004) Sections- 53A, 59A, 60A and 60B, 63A, 65A, 67A, 114A was inserted by section 58 of the Transfer of Property (Amendment) Act, 1929 (Act No. XX of 1929) Transfer of Property Laws at a glance In Bangladesh hundreds of laws are prevailing on the transfer of various types of properties. A brief discussion of some essential laws is given herein below for quick understanding of the essence of all those laws: The Transfer of Property Act, 1882 Enacted in year of-1882; Containing-137 sections divided into VIII chapters; Key words- Sale, property, transfer of property, gift, mortgage, lease, actionable claim, exchange, charge, redemption, foreclosure, part-performance, election etc; Chapter-II part-a applicable for both movable and immovable property and part-b applicable for immovable property only; Relevant Laws- The Registration Act,1908; the Contract Act, 1872 and also the Personal laws of various communities. The Registration Act, 1908 Enacted in the year of 1908;

12 Containing -93 sections divided into XV parts; Key words- Documents, documents of which registration is compulsory, documents of which registration is optional, time of registration, place of registration, formalities or procedures of registration, refusal of registration, remedies against the refusal of registration, wills and deposit of wills, adoption, effect of non-registration, registration offices, duties and powers of registering officers etc; All immovable properties to be registered as per this Laws to the registration office (known as sub-registry office); For movable property or of intellectual property different types of registry office are also available in the country; Relevant Laws- The Registration Rules, 2004 that enumerates the fees necessary for such a registration of immovable property; A Trust property may be registered to the registration office; The Contract Act, 1872 Enacted in the year of 1872; Containing-238 sections divided into XI chapters; Key words- Contract, types of contract, void, voidable and valid contracts, contingent contracts, quasi contracts, mistake, undue influence, fraud, misrepresentation, coercion, indemnity and guarantee, bailment, agency, rights and duties of bailor-bailee, agent-principal-third parties relationship, formalities of a contract, breach of contract and remedies etc; Chapter-VII and XI is now repealed and two laws were enacted separately instead of that known as The Sale of Goods Act, 1930; and the Partnership Act, Relevant Laws: The Contract Act is applicable for all sorts of written contract whether it relates to sale or gift or trust or whatever may be. The Trust Act, 1882 Enacted in the year of 1882; Containing 96 sections divided into IX chapters; Key words- Trust, Trustee, beneficiaries, settler, resulting trust, constructive trust, rights and liabilities of the trustee, rights and

13 liabilities of the beneficiaries, discharge of trustee, extinction of trust, certain obligations in the nature of trust etc; Trust is an obligation to the ownership of the property; The trustee is not the owner but the receiver of the property who shall undertake to protect the rights of the beneficiaries; This law derived from English Common Law; Relevant Laws-Please see the above chart that discusses the forms of transfer and the relevant laws; The Power of Attorney Act, 1882 (now the Act 2012 and Rules 2015) Enacted in the year of 1882; Containing six sections; Key words- Execution under power of attorney; donor and donee of the power of attorney, liability of the attorney for payment to the third parties or payee in favour of the donor, appoint of an attorney by a married minor woman, deposition of the original copy of the power-of-attorney to the High Court Division Relevant Laws- This Act is applied for dodging registration fees to the Government especially in the housing and real estate sector. This Law is also applicable for filing any petition to the Court on behalf of another. The lawyers are also authorized to act in favour of his client under this Law. The Bangladesh Transfer of Immovable Property (Temporary Provisions) Order, 1972 Promulgated in the year of 1972; Containing-12 sections; Key words- Transfer, validity of a transfer of immovable property, affidavit for the transfer of every immovable property containing information of the nationality of the transferor and also the transfer is not barred by-(i) Bangladesh Collaborators (Special Tribunals) Order, 1972 (P.O. No. 8 of 1972); (ii) the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972); (iii) Article 5A of the Bangladesh Land Holding (Limitation) Order, 1972 (P.O. No. 98 of 1972); property to be transferred must not be undervalued, schedule or description and qualification of the transferor to be mentioned, transfer must not be barred by any law or the property must not be vested to the government; Government to be a necessary party to some suits of immovable

14 property; restriction on partition of land exceeding 100 bighas; restriction on suits for certain properties, special privilege and immunities of the officer s working under this Order. Relevant Laws- This Order is applicable for all sorts of transfer of immovable properties for which registration is compulsory. The Limitation Act, 1908 Enacted in the year of 1908; Containing 30 sections divided into 5-parts and also a schedule containing-183 articles; Key words- Limitation, limitation period, limitation for filing a suit or appeal or revision or review petition etc., condonation of delay, computation of period of limitation, acquisition of ownership by possession etc.; The schedule of the Act states specific time limitation for filing various types of suits or cases or applications to the Court. Relevant Laws: This Act is applicable for both civil suits and criminal cases. There are many special laws for which the Limitation Act shall not be applicable. The Code of Civil Procedure, 1908 Enacted in the year of 1908; Containing -158 sections and five schedules; The schedules are divided into some 50 Orders and many Rules as well as different categories of forms of summon, notice etc. are mentioned in the schedules. The formats of plaint, written statements etc are also given in the schedules; The sections of this Code are enacted by the Parliament are supreme law in consideration with the Rules under various Orders which is enacted by the Rule making Committee and therefore considered as subordinate law. The Sections can be amended only by the Parliament. Key words- Order, decree, judgement, court, civil suit, plaint, pleading, written statement, strike out of the plaint, amendment to the plaint, written objection, exparte decree, attachment, civil jail, injunction, attachment before judgement, interpleader suit, pauper suit, ADR, mediation, arbitration, appeal, review, revision, receiver, affidavit, verification, summon, notice, auction, sale, execution of decree, arrest-detention, suit

15 valuation, court fees, power, vokalatnama, commission, inspection, affirmation, admission, violation misc. case, jurisdiction etc. Relevant Laws- This law is considered as the prime law that controls and regulates the proceedings of all types of ordinary civil suits. There are special proceedings for certain type of special suits. The Penal Code, 1860 Enacted in the year of 1860; A Code is a set of Laws; Containing-511 sections divided into XXIII chapters; Key words- Offence, types of offences, offences relating to body, offences relating to property, self defense, general exceptions, murder, counterfeit, culpable homicide, suicide, miscarriage, hurt, injury, grievous hurt, mischief, theft, dacoity, robbery, wrongful restraint, wrongful confinement, unlawful assembly, cheating, misappropriation of property, criminal breach of trust, rape, unnatural lust, intimidation, document, defamation, adultery, tampering trademarks, huse-braking, house-trespass etc. Relevant Laws- This law is applicable to determine offences and its punishments. The proceedings of trial are mentioned in the Cr P C, 1898 and also in the Evidence Act, There are a lot of special laws dealing with offences. The various offences relating to property are also regulated by this Code. The Code of criminal Procedure, 1898 Enacted in the year of 1898; The Islamic Shari a Law was prevailing in the Indian sub-continent prior to the enactment of this Code; A few regulations based on English Common Law was also existed in some corner s of the Country. Containing 565 sections and 5-schedules; The schedules of the Law containing various forms of summonb, warrant, proclamation of arrest and also the powers and jurisdictions of various Courts of criminal jurisdictions. Key words- Courts having criminal jurisdictions, criminal proceedings, pre-trial, trial and post-trial stages, cognizance, cognizable-non cognizable offences, bailable-non bailable offences, compoundable offences, summon, warrant, Proclamation of arrest, search, seizure, inquiry, investigation, charge sheet, police remand, charge, discharge, narazi petition, conviction, acquittal, examination-in-chief, cross examination,

16 re-examination, judgement, approver, appeal, revision, review, quashment, habeas corpus writ, presidential clemency, public prosecutor, bail, transfer of cases, summary trial, lunatics etc. Relevant Laws- This law is considered as the prime law that controls and regulates the proceedings of all types of ordinary Criminal cases. There are special proceedings for certain type of special cases under various special laws. The Penal Code, 1860 and the Evidence Act, 1872 is the most relevant laws. This Code also regulates seizure and attachment of certain categories of properties and also of their disposal e.g. smuggling or hoarding goods or materials or attached by order of courts etc(sections, ). The Evidence Act, 1872 Enacted in the year of 1872; Containing-167 sections and XI chapters; Key words- Evidence, facts, facts in issue, admission, confession, dying declaration, statements made in special circumstances, expert opinion, judicial notice, character, burden of prove, documents, public and private documents, oral and documentary evidence, estoppel, witnesses, examination of witnesses etc. Relevant Laws- The Code of Civil Procedure, 1908, The Code of Criminal Procedure, 1898, the Penal Code, The Special Civil and Criminal Laws etc. Regarding property Law it is also essential to prove or disprove a document. The Notaries Ordinance, 1961 Enacted in the year of 1961; An Ordinance is a law which was promulgated by the President when the Parliament was not in session; An Ordinance or Order although gets approval of the Parliaments later on, it is knows as its previous name. So, all Ordinances or Orders etc. are actually Act but known by its own name. Containing-16 sections; Key words- Notaries, appointment of notaries, qualifications of notaries, registrar of notaries, removal of notaries, penalty for false representation of notaries etc.

17 Relevant Laws- The Notaries Rules, 1964; A notary may be appointed from the practicing lawyer having 7 years experience or from the persons having five years experience as a judicial member or persons having 5 years experience in the process of drafting and making laws as a Government servant. A notary may verify, authenticate, certify or attest the execution of any instrument or administer oath to, or take affidavit from, any person or any other act which may be prescribed by Law. For Property Law, a notary may conduct the affidavit or for intimation of the newly enrolled lawyer they may administer the oath of the relevant instruments. The Sale of Goods Act, 1930 Enacted in the year of 1930; Containing-66 sections divided into VII chapters; Key words- Goods 40, buyer, seller, delivery, contract for sale, price, warranties, conditions, transfer of property in between seller and buyer, performance of the Contract, rights of unpaid seller against the goods, suit for breach of goods etc. Relevant Laws- This Act is applicable for the transfer of all movable properties except actionable claims and money transaction. The Specific Relief Act, 1877 Enacted in the year of 1877; Containing 57 sections divided into X-chapters; Key words-specific relief, suit for recovering possession, preventive relief, not applicable for penal law, declaration suit, injunction, cancellation of deed, rectification of deed, recession of contract, receiver, Contracts which may be specifically enforced or contracts which may not be specifically enforced. Relevant Laws- This Law is applicable for both movable and immovable properties especially for the enforcement of a contract. The Copy Right Act, Section-2 (7) of the Sale of Goods Act, 1930 states that "goods" means every kind of moveable property other than actionable claims and money; and includes electricity, water, gas, stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

18 Enacted in the year of 2000; Containing-105 sections divided into 17 chapters; Key words- copy right, copy right registering authority, penalty for violation of copyright, transfer of copy right; international copyright, delivery of books in the national library and archives, civil remedies for violation of copyright, licence, copyright office, copyright association etc; Relevant Law- This law is applicable for ensuring right in re propria relating to the rights of an author, singer, artist etc. a র পত সm t pতয র পণ আiন, 2001 Enacted in the year of 2001; Containing 33 sections; Key words- Vested property, return of vested property to the real owner, property of which return is prohibited, Constitution of vested property tribunal, rules regarding unclaimed vested property, appeal against the order of the tribunal etc; Relevant Laws- Vested property law means (a) Defence of Pakistan Ordinance, 1965 (Ord. No. XXIII of 1965) (য হ 16/02/1969 i ত রখ পরয n ক রয কর ছল); (আ) uk Ordinance No. XXIII of 1965 eর aধ ন pণ ত Defence of Pakistan Rules, 1965 eব uk Rules eর aধ ন pদt আ দ শর যতট k দফ (u) ত u l খত Act ব ল হফ জতকত; (i) Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (Ord. No. I of 1969) (য হ Act XLV of 1974 d র র হত); (ঈ) Bangladesh (Vesting of Property and Assets) Order, 1972 (P. O. No. 29 of 1972) eর যতট k uপ-দফ (a), (আ) eব (i)- ত u l খত Ordinance eব Rules eর k t p য জয হয়; (u) Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 (XLV of 1974); eব (ঊ) Vested and Non-resident Property (Administration) Act, 1974 (XLVI of 1974) (য হ Ord. No. XCII of 1976 d র র হত) eর যতট k uপ-দফ (a), (আ) eব (i)- ত u l খত Ordinance eব Rules eর k t p য জয হয়; This law had a long historical background. The Government has not yet made the law effective by executing its provisions. The State Acquisition and Tenancy (SAT) Act, 1950

19 Enacted in the year of 1950; Containing 152 sections divided into XIX chapters and also a schedule as per the section-80 of the Act; Key words- Rayat, tenant, estate, encumbrance, homestead, khas land, rent, revenue officer, succession, holding, acquisition of certain interests of rent-receivers, acquisition of occupancy rights, preparation for record of rights, assessment of compensation and acquisition of interests of rent-receivers and of certain other interests, preparation of compensation roll, authorities for the preparation of compensation-assessment roll, arrears of rent, agricultural tenants, in-debt tenants, assessment, enhancement and reduction of rent, realization of rent, amalgamation, subdivision and consolidation of holdings, Land survey tribunal and land survey appellate tribunal, jurisdiction of the Tribunal etc. Relevant Laws- This law is applicable to ascertain the categories of land and to describe the schedule of the land. The Jamindari was abolished by this Act. The Khatian prepared under this Law is known as S A Khatian; The Acquisition and Requisition of Immovable Property Ordinance, 1982 Enacted in the year of 1982; Containing 48-sections divided into V parts; Key words- property, owner, acquisition, award of compensation by the D C, notice to all the interested owners, part acquisition, requisition of property, award of compensation, eviction of allottees, arbitration, power to inter and inspect, costs of arbitration, penalty, bar to jurisdiction of the Court etc. Relevant Laws- This Law is applicable for acquisition i.e. acquire for permanently or requisition i.e. require for a specific period of time, of the property for the interest of public in respect of immovable properties. জ ত য় গহ য়ন কর তপk আiন, 2000 Enacted in the year of 2000; Containing 27 sections; Key words- National Housing Society, functions of the Society, Construction of building for the distresses and also to fulfill the demands of the urban society, allocate fund for the society, disbursing loan etc.

20 Relevant Laws- This Law is applicable for the urban people to construct building for their accommodation with special care to the distressed and woman. The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 Enacted in the year of 1985; Containing 12-sections; Key words- Abandoned buildings, possession of abandoned buildings, notice of taking possession, establishment of the Court of settlement, Functions of the Court of Settlement, special privilege to the Government owned buildings etc; Relevant Laws- This Law is applicable to the abandoned buildings and transfer of those buildings to the ownership and possession of the Government; The Alluvial Lands Act, 1920 Enacted in the year of 1920; Containing 10-sections; Key words- Alluvial land 41, collector, Collector s power to attach alluvial land, Reference to civil courts, possession by the claimants, appeal, costs, revisions, control of the Government, bar to the civil court etc. The provisions of section-145 of the Cr P C is not applicable for this type of dispute regarding char land. Relevant Laws- This Law is the most important law that delivers properties to the landless people by the Government especially in the char area. The previous law on the subject matter was- (i) the Bengal Alluvion and Diluvion Regulation, 1825, or (ii) the Bengal Alluvion (Amendment) Act, 1868, and (iii) The Alluvion (Amendment) Act, 1868 ; The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (President's Order) 41 Section- 2 of the Act, 1920 states that- In this Act, unless there is anything repugnant in the subject or context,- (a) "alluvial land" means land which is gained from a river or the sea in any of the ways referred to in the Bengal Alluvion and Diluvion Regulation, 1825, 1 [ ***] or the Bengal Alluvion (Amendment) Act, 1868, and includes reformations in situ; and

21 Promulgated in the year of 1972; Containing-25 sections; Key words- Abandoned property 42, cancellation of allotment, appeal to the Government if any person aggrieved, bar to the judicial proceedings, attachment by the District Commissioner or Sub-divisional Magistrate. Relevant Laws- The transfer of property law is seriously affected by the provisions of this Order as no provisions of compensation is mentioned any where in the law as the act regarding attachment of abandoned property is considered as a special power of the DC and not like acquisition or requisition of property. The Charitable and Religious Trusts Act, 1920 Enacted in the year of 1920; Containing-13 sections; Key words- Court having jurisdiction to direct the trustee to furnish the object of the trust, auditing of the trust, inquiry on the financial anomalies, application of CPC, costs on the suit to be paid by the trustee etc; Relevant Laws- The Trust Act, 1882; The Charitable Endowments Act, 1890 etc; The Charitable Endowments Act, Section-2 of the Order, 1972 states that- In this Order, unless there is anything repugnant in the subject or context,- (1) abandoned property means any property owned by any person who is not present in Bangladesh or whose whereabouts are not known or who has ceased to occupy, supervise or manage in person his property, including- (i) any property owned by any person who is a citizen of a State which at any time after the 25th day of March, 1971, was at war with or engaged in military operations against the People's Republic of Bangladesh; (ii) any property taken over under the Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972 (Acting President's Order No. 1 of 1972), but does not include- (a) any property the owner of which is residing outside Bangladesh for any purpose which, in the opinion of the Government, is not prejudicial to the interest of Bangladesh; (b) any property which is in the possession or under the control of the Government under any law for the time being in force. Explanation: Person who is not present in Bangladesh includes any body of persons or company constituted or incorporated in the territory or under the laws of a State which at any time after the 25th day of March, 1971, was at war with or engaged in military operations against the People's Republic of Bangladesh;